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[ { "docid": "22437426", "title": "", "text": "clear predisposition, his conviction was reversed: This egregious conduct on the part of government agents generated new crimes by the defendant merely for the sake of pressing criminal charges against him when, as far as the record reveals, he was lawfully and peacefully minding his own • affairs. Fundamental fairness does not permit us to countenance such actions by law enforcement officials and prosecution for a crime so fomented by them will be barred. Id. at 381 (footnote deleted). Based on Twigg, the Eastern District of Pennsylvania recently acquitted two subjects of the “Abscam” undercover operation. United States v. Jannotti, 501 F.Supp. 1182 (E.D.Pa.1980) (appeal pending). The court found as a matter of law that the defendants had no predisposition to commit the offenses, and had been entrapped by the government. Id. at 1200. The court further found that the governmental involvement violated due process even if defendants were predisposed to commit the crimes. Id. at 1204-05. Government agents had posed as representatives of an Arab sheik who desired to build a hotel complex in Philadelphia. The defendants, members of the City Council, agreed to assist the project because it would benefit the city. Government agents offered bribes as an additional inducement. Defendants had not requested money, and had made it clear none was necessary. The agents insisted the sheik would be unwilling to proceed with the project unless the payments were accepted. Defendants accepted the money, but did not agree to do anything inconsistent with their obligation to promote the interests of the city. 501 F.Supp. at 1200. The government’s conduct in the present case does not rise to the level of outra-geousness reflected in Twigg and Jannotti. Treating the evidence in the light most favorable to the government, as we must, we find the government’s involvement reflected neither the dominant fomentation of Twigg nor the aggressive solicitation of Jannotti. If the conduct of the government was in some respects overzealous, it was clearly not “so grossly shocking and so outrageous as to violate the universal sense of justice.” United States v. Ryan, 548 F.2d at 789. The convictions" } ]

[ { "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": "18061207", "title": "", "text": "concluded that “constitutionally unacceptable” are cases where the “crime is fabricated entirely by the police to secure the defendant’s conviction rather than to protect the public from the defendant’s continuing criminal behavior.” Id. at 1438. The majority opinion concedes that the government here fails the first, fourth, and fifth factors of the Bonanno test. Op. at 304-08. It is undisputed that the defendants were not involved in a continuing series of similar crimes or a criminal enterprise already in progress; that the agents did not infiltrate a criminal organization; and the agents did not approach persons already contemplating or engaged in criminal activity. The cases that decline to use the Bonanno test articulate a guiding principle. In United States v. Gurolla, 333 F.3d 944 (9th Cir.2003), for instance, a case that the majority notes as declining to use the Bonanno test, see Op. at 308 n. 7, this court stated that our lodestar in determining whether the government conduct is outrageous is whether “the government did not initiate the criminal activity, but rather sought to crack an ongoing operation,” Gurolla, 333 F.3d at 950. Plainly, no ongoing operation existed here. Plainly the government here did initiate the criminal activity. The majority declares that its “concerns that [the government] sought to manufacture a crime that would not have otherwise occurred” are “mitigated to a large degree.” Op. at 307. This mitigation is due to Simpson and Black telling Zayas that they had done similar stash house robberies. These repeated assurances “quickly supplied,” the majority says, “reasons to suspect they were likely to get involved in stash house robberies.” Id. at 307. Nothing in the presentence reports on Black and Simpson shows that they had ever engaged in a stash house robbery. At least as far as the government knew, they were simply boasting. For the government agents to believe the boasts may have been reasonable. But the boasts did not show them to be currently engaged in this kind of crime. As far as the government agents knew or believed, Black and Simpson were neither committing a crime nor engaged in" }, { "docid": "23199670", "title": "", "text": "previous cases. First, Simpson cannot contend that Miller’s status as a paid informant makes her every decision about how to establish rapport with the suspect attributable to the FBI. This argument is squarely foreclosed by United States v. Prairie, 572 F.2d 1316 (9th Cir.1978), in which we held there was no due process violation when, unbeknownst to the government, a paid informant had sex with her suspect. In Prairie, the informant was a known prostitute, but she “was neither paid nor asked by the agents to establish any particular relationship with [the suspect] and, in any event, her official role was limited to that of introducing a willing seller of narcotics to a willing purchaser.” 572 F.2d at 1319. We held on these facts that there could be no due process violation because the informant’s use of sex in dealing with her suspect was not attributable to the government. Id. See also Ryan, 548 F.2d at 791 (private informant’s interference with a suspect’s attorney-client relationship was not attributable to government where there was no “evidence that [the informant] consulted with state agents before [interfering] or that the state was in any manner involved in this [interference]”). As in Prairie, the facts as found by Judge Hatter indicate that the FBI did nothing to encourage the informant to use sex in carrying out her assignment. Indeed, Judge Hatter explicitly found that agent Hamer repeatedly “instructed Miller ... not to get sexually involved.” 10 Reporter’s Transcript (“R.T.”) at 47. Therefore Miller’s initial decision to establish a deceptive sexual and emotional relationship cannot be used to characterize the government’s conduct in this case as outrageous. To be sure, Judge Hatter found that the FBI’s hands were not entirely clean. At some point the FBI became aware of Mil ler’s sexual involvement with Simpson, and though agent Hamer continued to warn her to refrain from further sexual activity, Judge Hatter found that Hamer probably expected her to continue. 10 R.T. at 47. The FBI deliberately closed its eyes to Miller’s ongoing conduct, 10 R.T. at 46, and did not terminate her involvement in the" }, { "docid": "18061191", "title": "", "text": "United States v. Bonanno, 852 F.2d 434, 437-38 (9th Cir.1988) (citing Bogart, 783 F.2d at 1435-38). These factors have not been used consistently, however, nor as a dispositive test. See, e.g., United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.2003) (not citing or employing the Bonanno factors and instead rejecting the defendants’ outrageous government conduct claim on the more general principle that “the government did not initiate the criminal activity, but rather sought to crack an ongoing operation”). Because we are to resolve every case on its own particular facts, we take account of the Bonanno factors in our analysis but only as part of our consideration of all the circumstances as a whole. . The dissent points out that in most of our decisions rejecting claims of outrageous government conduct the government targeted an existing scheme or suspected an individual of wrongdoing before initiating the sting operation. We agree with the dissent that the absence of those conditions here supports the defendants’ outrageous government conduct claim. In light of our precedent, however, we cannot say that this one factor alone establishes a due process violation. In at least two cases, we have rejected outrageous government conduct claims where, as here, the government initiated a sting operation without targeting an existing scheme or suspecting an individual of wrongdoing. In Bagnariol, the government approached persons involved with lawful gambling enterprises authorized under state law. See Bagnariol, 665 F.2d at 880-81. In United States v. Emmert, 829 F.2d 805 (9th Cir.1987), a confidential informant approached a college student about locating a substantial supply of cocaine for a buyer in the area. The government had no individualized suspicion of the college student as someone who was a drug user or dealer. Rather, the investigators approached him merely because they believed he attended a party at which cocaine was used and he in turn led them to his college roommate, Emmert. See id. at 807, 812. We found sufficient proof that Emmert was contemplating criminal activity simply by his agreement to engage in the criminal activity proposed by the government. See id. at" }, { "docid": "18061175", "title": "", "text": "we are satisfied that there is no significant evidence of government overreaching or coercion — significant factors in determining whether the government acted outrageously. Government’s encouragement of defendants. The extent to which the government encouraged a defendant to participate in the charged conduct is important, with mere encouragement being of lesser concern than pressure or coercion. See, e.g., Mayer, 503 F.3d at 755 (“There is no evidence in the record that any coercive relationship existed between Mayer and Hamer.”); McClelland, 72 F.3d at 721 (rejecting outrageous government conduct claim but noting that the government agent “did encourage McClelland at various times”); Shaw v. Winters, 796 F.2d 1124, 1125 (9th Cir.1986) (“While there is no evidence that Shaw had dealt in food stamps before, once they were available he purchased them willingly and without pressure.”). There is little evidence of government coercion or pressure here. Simpson testified that he felt pressure from Agent Zayas urging him “to do something real quick” in putting a team together and planning the robbery; and the compressed time line of the operation and Zayas’ comments implying that Black and Simpson should involve more individuals may have placed subtle pressure on defendants' to put a team together and quickly plan the details of the robbery. But there is no evidence that the government engaged in inappropriate activity, threats or coercion to encourage defendants to engage in the robbery. Instead, the government proposed the stash house robbery, and the defendants eagerly jumped at the opportunity. Government’s participation in the crime. We have also considered various aspects of the government’s participation in the offense conduct as relevant. The duration of the government’s participation in a criminal enterprise is significant, with participation of longer duration being of greater concern than intermittent or short-term government involvement. See Greene, 454 F.2d at 786 (finding outrageous government conduct where the government’s participation “was of extremely long duration, lasting” about three years). We have also looked to the nature of the government’s participation — whether the government acted as a partner in the criminal activity, or more as an observer of the defendant’s" }, { "docid": "22052061", "title": "", "text": "government conduct Appellants argue that the district court erred in failing to dismiss the indictment because of outrageous government conduct in the process of investigating this case. Appellants claim that various aspects of the government’s involvement with and reliance on informant John “Stranger” Turscak resulted in conduct so improper that their due process rights have been violated. They also argue that the district court should have dismissed the indictments under its supervisory power as a sanction for the government misconduct. Appellants Fernandez, Gonzales, Sanchez and Schoenberg all joined a motion by co-defendant Cervantes raising this claim at the district court. We review the due process claim as to these appellants de novo, United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.2003), but review the supervisory power claim under the abuse of discretion standard. Id. We review the claims with respect to appellants Gaval-don and Contreras for plain error. See United States v. Duncan, 896 F.2d 271, 275 (7th Cir.1990). In reviewing these claims, we view the 'evidence in the light most favorable to the government and accept the district court’s factual findings unless clearly erroneous. Gurolla, 333 F.3d at 950. “The defense of outrageous government conduct is limited to extreme cases in which the government’s conduct violates fundamental fairness and is shocking to the universal sense of justice mandated by the Due Process Clause of the Fifth Amendment.” Gurolla, 333 F.3d at 950 (citations and internal quotation marks omitted). We have found outrageous government conduct in instances where the government has “engineer[ed] and directed] the criminal enterprise from start to finish,” United States v. Smith, 924 F.2d 889, 897 (9th Cir.1991), and in “that slim category of cases in which the police have been brutal, employing physical or psychological coercion against the defendant.” United States v. Bogart, 783 F.2d 1428, 1435 (9th Cir.1986) (citation omitted), vacated in part on other grounds sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir.1986). We do not find such conduct here. Appellants claim that the government engaged in outrageous conduct in this case because it used Turscak as a confidential informant" }, { "docid": "383846", "title": "", "text": "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 offenses is so extensive that due process prevents the conviction of even a predisposed defendant. Id.; United States v. Gonzales-Benitez, 537 F.2d 1051, 1055 (9th Cir.1976), cert. denied, 429 U.S. 923, 97 S.Ct. 323, 50 L.Ed.2d 291 (1976). The government’s involvement must be malum in se or amount to the engineering and direction of the criminal enterprise from beginning to end. Williams, 791 F.2d at 1386. Only two circuit decisions have been found that dismissed indictments based on this defense. In United States v. Twigg, 588 F.2d 373 (3d Cir.1978), the Third Circuit overturned convictions where a government agent suggested the creation of a speed laboratory and gratuitously supplied about 20% of the needed glassware, as well as an indispensable ingredient to production. The government also made arrangements with a chemical supply house to facilitate access to the rest of the materials. When problems developed in securing an adequate production site, the government secured an isolated farmhouse at no cost to the defendants. The government provided all the laboratory expertise. Without the government agent, the" }, { "docid": "23078801", "title": "", "text": "de novo. United States v. Citro, 842 F.2d 1149, 1152 (9th Cir.1988). For a due process dismissal, the Government’s conduct must be so grossly shocking and so outrageous as to violate the universal sense of justice. United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983); Citro, 842 F.2d at 1152. The Government’s involvement must be malum in se or amount to the engineering and direction of the criminal enterprise from start to finish. Citro, 842 F.2d at 1153. The police conduct must be “repugnant to the American system of justice.” Shaw v. Winters, 796 F.2d 1124, 1125 (9th Cir.1986) (quoting United States v. Lomas, 706 F.2d 886, 891 (9th Cir.1983), cert. denied, 464 U.S. 1047, 104 S.Ct. 720, 79 L.Ed.2d 182 (1984)). In short, a defendant must meet an extremely high standard. The courts have upheld all of the following: Use of false identities by undercover agents, Shaw, 796 F.2d at 1125, and United States v. Marcello, 731 F.2d 1354, 1357 (9th Cir.1984); the supply of contraband at issue in the offense, Hampton v. United States, 425 U.S. 484, 489, 96 S.Ct. 1646, 1649-50, 48 L.Ed.2d 113 (1976); the commission of equally serious offenses by an undercover agent as part of the investigation, United States v. Stenberg, 803 F.2d 422, 430 (9th Cir.1986); the introduction of drugs into a prison to identify a distribution network, United States v. Wiley, 794 F.2d 514, 515 (9th Cir.1986); the assistance and encouragement of escape attempts, 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); use of a heroin-using prostitute informant whose own activities were under investigation and who engaged in regular intercourse with the defendant, United States v. Simpson, 813 F.2d 1462, 1465-71 (9th Cir.1987). Although drug agents’ encouraging 18-year-old patients in drug-treatment centers to deal drugs is not the most constructive enforcement method, it does not rise to the level of outrageous conduct necessary to constitute a due process violation. Here, Popp showed a tendency for dealing drugs independent of any action on the part of the DEA:" }, { "docid": "18061174", "title": "", "text": "in the defendants’ favor that the government had no knowledge of any past criminal conduct by any of the defendants when the Cl brought Simpson to the first meeting with Zayas, Simpson’s and Black’s repeated representations that they had engaged in related criminal activity in the past quickly supplied reasons to suspect they were likely to get involved in stash house robberies. Moreover, our review of the record persuades us that once Zayas set his bait, the defendants “responded without further inducement by the government.” Bagnariol, 665 F.2d at 882 (emphasis added). Instead, they responded with enthusiasm. They were eager to commit the fictional stash house robbery, and they joined the conspiracy without any great inducement or pressure from the government. Indeed, the defendants before us in this appeal were recruited by other defendants, not by Agent Zayas or the Cl. We therefore turn to our review of the government’s conduct once the sting got underway. C. Government’s Post-Initiation Conduct In reviewing the government’s conduct once defendants agreed to the scheme and began its implementation, we are satisfied that there is no significant evidence of government overreaching or coercion — significant factors in determining whether the government acted outrageously. Government’s encouragement of defendants. The extent to which the government encouraged a defendant to participate in the charged conduct is important, with mere encouragement being of lesser concern than pressure or coercion. See, e.g., Mayer, 503 F.3d at 755 (“There is no evidence in the record that any coercive relationship existed between Mayer and Hamer.”); McClelland, 72 F.3d at 721 (rejecting outrageous government conduct claim but noting that the government agent “did encourage McClelland at various times”); Shaw v. Winters, 796 F.2d 1124, 1125 (9th Cir.1986) (“While there is no evidence that Shaw had dealt in food stamps before, once they were available he purchased them willingly and without pressure.”). There is little evidence of government coercion or pressure here. Simpson testified that he felt pressure from Agent Zayas urging him “to do something real quick” in putting a team together and planning the robbery; and the compressed time line of" }, { "docid": "18061167", "title": "", "text": "indicated they were already involved in continuing illegal transactions involving wildlife.”), superseded by statute on other grounds as stated in United States v. Atkinson, 966 F.2d 1270, 1273 n. 4 (9th Cir.1992). In some cases where the government did not suspect a particular individual, it has focused on a category of persons it had reason to believe were involved in the type of illegal conduct being investigated. An example is Garzar-Juarez, 992 F.2d 896, involving an investigation of illegal firearm trafficking at swap meets. The government received a tip that a Hispanic male at a swap meet near Casa Grande, Arizona, had illegally sold an assault-type firearm. On that information alone, an undercover agent went to the Casa Grande swap meet looking for Hispanic males and came upon the defendant, who appeared to be selling firearms in numbers exceeding those of a professed “gun collector.” The government then lured him into a faked sale of illegal weapons. See id. at 899-900. See also Emmert, 829 F.2d at 812 (targeting student who attended a cocaine party as one likely to know drug dealers); United States v. Bagnariol, 665 F.2d 877, 882 (9th Cir.1981) (targeting politicians, political operatives and persons in the gaming business in investigation of political corruption). Known criminal characteristics of defendants. Closely related to the question of individualized suspicion is whether a defendant had a criminal background or propensity the government knew about when it initiated its sting operation. See, e.g., Williams, 547 F.3d at 1200 (noting that before the government suggested a stash house robbery, the defendant was introduced to the government “as a middleman drug dealer”); United States v. Mayer, 503 F.3d 740, 754 (9th Cir.2007) (“While Mayer points out there was no ongoing criminal enterprise that the government was merely trying to join, Mayer was certainly a willing and experienced participant in similar activities [traveling internationally for sex with boys].” (citation omitted)). Government’s role in creating the crime. Also relevant is whether the government approached the defendant initially or the defendant approached a government agent, and whether the government proposed the criminal enterprise or merely attached" }, { "docid": "18061204", "title": "", "text": "criminal justice. The majority’s rationale for permitting the government to tempt the general population to crime imposes no limits upon the imagination of agents of the government. Besides Bagnariol, the government searches among its previous stings to find a precedent for what the government did here. The search has not been productive. The government cites cases where the defendants asserted a defense of outrageous government conduct and failed to establish the defense. In United States v. Stenberg, 803 F.2d 422 (9th Cir.1986), the defendants were already engaged in the type of illegal transactions the government sought to shut down, id. at 430. In United States v. Bonanno, 852 F.2d 434 (9th Cir.1988), the defendants were already involved in an illegal purchase order scheme, id. at 438. In United States v. Pemberton, 853 F.2d 730 (9th Cir.1988), the defendant was a long-time drug dealer already involved in money laundering, id. at 732. In United States v. Garza-Juarez, 992 F.2d 896 (9th Cir.1993), the defendants were already known to take part in a pre-existing illegal firearm trafficking scheme, id. at 900. In United States v. Gurolla, 333 F.3d 944 (9th Cir.2003), one of the largest undercover operations in history, the defendants were already part of a massive money laundering scheme in which Mexican banks laundered money to various drug cartels, id. at 948. In United States v. Williams, 547 F.3d 1187 (9th Cir.2008), the defendant was already wanted for a prior bank robbery; had engaged in several drug deals with a government informant; and had planned his second bank robbery in detail and on his own accord, going so far as to identify a target bank and recruit someone on the inside of the bank to help. It was only after the defendant enlisted a government informant to be his getaway driver that the ATF pitched the fictitious drug stash house as a safer alternative to robbing a bank. Id. at 1192. In each of these cases, the government targeted an existing scheme or suspected an individual of wrongdoing before initiating a sting operation. An Alternative Approach The majority opinion scarcely offers" }, { "docid": "19797117", "title": "", "text": "“[W]e view the evidence in the light most favorable to the government and we accept the district court’s factual findings unless they are clearly erroneous.” United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.), cert. denied, 540 U.S. 995, 124 S.Ct. 496, 157 L.Ed.2d 395 (2003). We agree with the district court that dismissal was not required under the second Ker/Frisbie exception. Some of the government’s actions in Panama are quite disturbing, particularly the flat misstatements to Panamanian authorities. But a comparison to the circumstances in other cases in which the outrageous conduct exception was held inapplicable makes clear that the governmental conduct here does not meet the “extremely high standard” required for dismissal under the outrageous conduct / due process defense. United States v. Smith, 924 F.2d 889, 897 (9th Cir.1991). The involvement of U.S. government agents in facilitating the expulsion of Struckman from Panama and receiving him in the United States surely does not meet this standard. We have previously held, for example, that abduction of a defendant by U.S. Marshals from the defendant’s home was not so shocking and outrageous as to warrant dismissal. See Mattar-Ballesteros, 71 F.3d at 761, 763. The lies told by O’Brien to Panamanian officials are considerably more troubling than other aspects of U.S. governmental involvement in Panama. We are not prepared to say that blatant lies to a foreign government that induce the foreign government to transfer a defendant to the United States when it otherwise would not could never amount to conduct so shocking and outrageous as to violate due process and require dismissal of pending criminal proceedings in the United States. In this case, though, the district court found that O’Brien’s misrepresentations came after the Panamanians had already decided to cooperate with the United States in returning Struckman and had issued the resolutions. So the Panamanians did not rely on these misrepresentations for that purpose. Also, Struckman was deported after his passport was revoked, which provided a separate reason for deportation under Panamanian law, in addition to those covered in the resolutions. In Anderson, we declined to apply the" }, { "docid": "18061205", "title": "", "text": "scheme, id. at 900. In United States v. Gurolla, 333 F.3d 944 (9th Cir.2003), one of the largest undercover operations in history, the defendants were already part of a massive money laundering scheme in which Mexican banks laundered money to various drug cartels, id. at 948. In United States v. Williams, 547 F.3d 1187 (9th Cir.2008), the defendant was already wanted for a prior bank robbery; had engaged in several drug deals with a government informant; and had planned his second bank robbery in detail and on his own accord, going so far as to identify a target bank and recruit someone on the inside of the bank to help. It was only after the defendant enlisted a government informant to be his getaway driver that the ATF pitched the fictitious drug stash house as a safer alternative to robbing a bank. Id. at 1192. In each of these cases, the government targeted an existing scheme or suspected an individual of wrongdoing before initiating a sting operation. An Alternative Approach The majority opinion scarcely offers an explanation for why it has declined to use the Bonanno test. The test is good law. Under the Bonanno test, the government’s conduct is not outrageous when: (1) the defendant was already involved in a continuing series of similar crimes, or the charged criminal enterprise was already in progress at the time the government agent became involved; (2) the agent’s participation was not necessary to enable the defendants to continue the criminal activity; (3) the agent used artifice and stratagem to ferret out criminal activity; (4) the agent infiltrated a criminal organization; and (5) the agent approached persons already contemplating or engaged in criminal activity. Williams, 547 F.3d at 1199-1200 (quoting Bonanno, 852 F.2d at 437-38 and evaluating whether the government’s conduct is outrageous by methodically considering each of the five factors). The origin of the test lay in United States v. Bogart, 783 F.2d 1428 (9th Cir.), vacated in part on reh’g sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir.1986). Systematically evaluating a number of outrageous government conduct cases, Bogart" }, { "docid": "21561252", "title": "", "text": "(9th Cir.1985). Law enforcement conduct becomes constitutionally unacceptable when “the police completely fabricate the crime solely to secure the defendant’s conviction.” United States v. Emmert, 829 F.2d 805, 811 (9th Cir.1987). The facts of the present case do not support a claim of outrageous government conduct. At the time Valentino first targeted the appellants for investigation, both Winslow and Nelson had already expressed interest in blowing up establishments frequented by homosexuals. Valentino’s acts of supplying Winslow with beer and food, and paying for the trip to Seattle and the bomb components, did not constitute outrageous government conduct. See United States v. Citro, 842 F.2d 1149, 1152-53 (9th Cir.) (undercover agent’s conduct in proposing and explaining details of credit card scheme to defendant and in supplying him with counterfeit credit cards did not constitute a due process violation), cert. denied, 488 U.S. 866, 109 S.Ct. 170, 102 L.Ed.2d 140 (1988). Valentino did not suggest or set up the plan from which the conspiracy evolved. See United States v. Smith, 802 F.2d 1119, 1126 (9th Cir.1986) (supplying opportunity for defendant to arrange drug sale was not outrageous government conduct because informant did not set up the source from which the defendant would purchase the drugs). While it is true that Valentino was paid $90,000 by the FBI as compensation for his undercover activity, “the government may employ undercover tactics to infiltrate criminal ranks and may rely on paid informants in order to locate and arrest criminals.” United States v. McQuin, 612 F.2d 1193, 1195-96 (9th Cir.), cert. denied, 445 U.S. 955, 100 S.Ct. 1608, 63 L.Ed.2d 791 (1980). Nor did the arrests of Nelson and Win-slow before the intended Seattle bomb was assembled, but after its components had been purchased, amount to outrageous government conduct. “Police are not required to delay arrest until innocent bystanders are imperiled.” United States v. Moore, 921 F.2d 207, 209 (9th Cir.1990). MOTION FOR MISTRIAL AND EVIDENTIARY OBJECTIONS A. Motion for Mistrial Nelson, Winslow and Baker argue that their convictions should be reversed on all counts because the district court erred in denying their motions for a" }, { "docid": "383847", "title": "", "text": "offenses is so extensive that due process prevents the conviction of even a predisposed defendant. Id.; United States v. Gonzales-Benitez, 537 F.2d 1051, 1055 (9th Cir.1976), cert. denied, 429 U.S. 923, 97 S.Ct. 323, 50 L.Ed.2d 291 (1976). The government’s involvement must be malum in se or amount to the engineering and direction of the criminal enterprise from beginning to end. Williams, 791 F.2d at 1386. Only two circuit decisions have been found that dismissed indictments based on this defense. In United States v. Twigg, 588 F.2d 373 (3d Cir.1978), the Third Circuit overturned convictions where a government agent suggested the creation of a speed laboratory and gratuitously supplied about 20% of the needed glassware, as well as an indispensable ingredient to production. The government also made arrangements with a chemical supply house to facilitate access to the rest of the materials. When problems developed in securing an adequate production site, the government secured an isolated farmhouse at no cost to the defendants. The government provided all the laboratory expertise. Without the government agent, the defendants would not have known how to produce the substance, and the assistance the defendants provided was minimal. Id. at 380-81. In Greene v. United States, 454 F.2d 783 (9th Cir.1971), this circuit barred prosecution where the government contacted the defendants after their arrest on previous bootlegging charges and offered to supply the necessary equipment, as well as an operator for a still. The government supplied a large quantity of sugar at wholesale, urged the beginning of production, and was the defendants’ sole customer. Id. at 786-87. The court held that the government may not involve “itself so directly and continuously over such a long period of time [two and one-half years] in the creation and maintenance of criminal operations, and yet prosecute its collaborators.” Id. at 787. In the case at hand, the government’s conduct rises nowhere near the levels of Twigg, 588 F.2d 373, or Greene, 454 F.2d 783. While it is true that the government supplied the counterfeit credit cards, and initially raised the idea of a counterfeit credit card scheme, unlike" }, { "docid": "18061169", "title": "", "text": "itself to one that was already established and ongoing. See Williams, 547 F.3d at 1200 (noting that government merely persuaded the defendant to substitute a stash house robbery for the planned bank robbery he had initially proposed to the government agent); Mayer, 503 F.3d at 747 (noting that the defendant was the first to broach the subject of traveling internationally to have sex with boys); United States v. Winslow, 962 F.2d 845, 849 (9th Cir.1992) (“At the time Valentino first targeted the appellants for investigation, both Winslow and Nelson had already expressed interest in blowing up establishments frequented by homosexuals.”); United States v. Wiley, 794 F.2d 514, 516 (9th Cir.1986) (“The drug distribution scheme between defendant and Garbiso was in existence before the government became involved; the government merely activated it.”). In the case before us, the government does not contend it had any individualized suspicion of any of the defendants as being involved in stash house robberies when it dispatched the Cl into the field to find persons willing to do such a robbery. Rather, it knew nothing about them or their criminal inclinations or experiences until the Cl surfaced Simpson through Curtis, a stranger at a bar. The only criterion the Cl used to select the bar was that it was in a “bad” area where persons engaged in “criminal activity” were likely to gather. This is a much wider net than we have seen in previous cases. Moreover, the stash house robbery was entirely the ATF’s creation, and it was Zayas who set the parameters for how it had to be carried out. Thus as to the inception stage of this sting, the argument for government overreaching has some force. Perhaps the most analogous case is Bagnariol, 665 F.2d 877. An FBI agent (Heald), as part of a two-year investigation into gambling and political corruption in the state of Washington, posed as the head of a fictitious corporation (So-Cal) interested in meeting politicians who, for a substantial fee, would assure passage of legislation expanding legalized cardroom gambling that So-Cal wanted to control. Heald made his interests known" }, { "docid": "23562089", "title": "", "text": "entrapment. Accordingly, we affirm the district court’s decision to deny the appellants’ Rule 29 motions. B Williams, Brown, and Steel next argue that the district court erred in failing to dismiss the indictment due to outrageous government conduct. They claim the government concocted, directed, and supervised the criminal enterprise from start to finish, and thus falls within the prohibition on outrageous government conduct imposed by the Due Process Clause of the Fifth Amendment. See United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). For the reasons described below, we reject their argument. “ ‘Outrageous government conduct is not a defense, but rather a claim that government conduct in securing an indictment was so shocking to due process values that the indictment must be dismissed.’ ” United States v. Holler, 411 F.3d 1061, 1065 (9th Cir.2005) (quoting United States v. Montoya, 45 F.3d 1286, 1300 (9th Cir.1995)). This claim requires meeting a “high standard,” id. at 1066, with a showing that “the government’s conduct violates fundamental fairness and is ‘shocking to the universal sense of justice mandated by the Due Process Clause of the Fifth Amendment.’ ” United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.2003) (quoting Russell, 411 U.S. at 431-32, 93 S.Ct. 1637). We explained in Gurolla that “[t]his standard is met when the government engineers and directs a criminal enterprise from start to finish,” but “is not met when the government merely infiltrates an existing organization, approaches persons it believes to be already engaged in or planning to participate in the conspiracy, or provides valuable and necessary items to the venture.” Id. (internal quotation marks and citations omitted). In United States v. Bonanno, 852 F.2d 434 (9th Cir.1988), we set forth five factors that, when satisfied, indicate that the governmental conduct was acceptable. The five factors are: (1) the defendant was already involved in a continuing series of similar crimes, or the charged criminal enterprise was already in process at the time the government agent became involved; (2) the agent’s participation was not necessary to enable the defendants to continue the" }, { "docid": "18061206", "title": "", "text": "an explanation for why it has declined to use the Bonanno test. The test is good law. Under the Bonanno test, the government’s conduct is not outrageous when: (1) the defendant was already involved in a continuing series of similar crimes, or the charged criminal enterprise was already in progress at the time the government agent became involved; (2) the agent’s participation was not necessary to enable the defendants to continue the criminal activity; (3) the agent used artifice and stratagem to ferret out criminal activity; (4) the agent infiltrated a criminal organization; and (5) the agent approached persons already contemplating or engaged in criminal activity. Williams, 547 F.3d at 1199-1200 (quoting Bonanno, 852 F.2d at 437-38 and evaluating whether the government’s conduct is outrageous by methodically considering each of the five factors). The origin of the test lay in United States v. Bogart, 783 F.2d 1428 (9th Cir.), vacated in part on reh’g sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir.1986). Systematically evaluating a number of outrageous government conduct cases, Bogart concluded that “constitutionally unacceptable” are cases where the “crime is fabricated entirely by the police to secure the defendant’s conviction rather than to protect the public from the defendant’s continuing criminal behavior.” Id. at 1438. The majority opinion concedes that the government here fails the first, fourth, and fifth factors of the Bonanno test. Op. at 304-08. It is undisputed that the defendants were not involved in a continuing series of similar crimes or a criminal enterprise already in progress; that the agents did not infiltrate a criminal organization; and the agents did not approach persons already contemplating or engaged in criminal activity. The cases that decline to use the Bonanno test articulate a guiding principle. In United States v. Gurolla, 333 F.3d 944 (9th Cir.2003), for instance, a case that the majority notes as declining to use the Bonanno test, see Op. at 308 n. 7, this court stated that our lodestar in determining whether the government conduct is outrageous is whether “the government did not initiate the criminal activity, but rather sought to" }, { "docid": "15709520", "title": "", "text": "United States v. Gomez-Tostado, 597 F.2d 170, 172-173 (9th Cir.1979). In Gomez-Tostado, the defendant was stopped in San Diego, California, en route to Mexico with five kilograms of heroin in his car. On appeal, Gomez-Tostado argued that the district court lacked jurisdiction under 21 U.S.C. § 841(a) because he intended to distribute the heroin in a foreign country. Id. at 172. We rejected Gomez-Tostado’s argument, holding that “we find nothing in the legislative history or language of section 841(a)(1) that suggests any congressional intent to limit the applicability of the statute to defendants whose intended distribution point is in this country.” Id. Holler argues that Gomez-Tostado is inapplicable because the defendant in that case actually possessed contraband, whereas Holler was never in possession of the government supplied cocaine. However, Holler was convicted of conspiracy to possess cocaine and attempted possession of cocaine, and neither of these statutes require actual possession. Accordingly, we conclude that the district court had jurisdiction. B. Outrageous Government Conduct Holler argues that the district court erred by not dismissing his indictment for outrageous government conduct because (1) the Cl had a history of misconduct as an informant and the DEA was aware of the prior misconduct, (2) the Cl engaged in misconduct in this, case, including the theft of drug money, and (3) the government ratified the Cl’s behavior. A claim that the indictment should be dismissed because the government’s conduct was so outrageous as to violate due process is reviewed de novo. United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.2003). The evidence is viewed in the light most favorable to.the government and findings of fact underlying the dismissal are reviewed under a clearly erroneous standard. Id.; see also United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir.1991). “Outrageous government conduct is not a defense, but rather a claim- that government conduct in securing an indictment was so shocking to due process values that the indictment must be dismissed.” United States v. Montoya, 45 F.3d 1286, 1300 (9th Cir.1995). To meet this high standard, the “governmental conduct must be so grossly shocking and" }, { "docid": "18061168", "title": "", "text": "as one likely to know drug dealers); United States v. Bagnariol, 665 F.2d 877, 882 (9th Cir.1981) (targeting politicians, political operatives and persons in the gaming business in investigation of political corruption). Known criminal characteristics of defendants. Closely related to the question of individualized suspicion is whether a defendant had a criminal background or propensity the government knew about when it initiated its sting operation. See, e.g., Williams, 547 F.3d at 1200 (noting that before the government suggested a stash house robbery, the defendant was introduced to the government “as a middleman drug dealer”); United States v. Mayer, 503 F.3d 740, 754 (9th Cir.2007) (“While Mayer points out there was no ongoing criminal enterprise that the government was merely trying to join, Mayer was certainly a willing and experienced participant in similar activities [traveling internationally for sex with boys].” (citation omitted)). Government’s role in creating the crime. Also relevant is whether the government approached the defendant initially or the defendant approached a government agent, and whether the government proposed the criminal enterprise or merely attached itself to one that was already established and ongoing. See Williams, 547 F.3d at 1200 (noting that government merely persuaded the defendant to substitute a stash house robbery for the planned bank robbery he had initially proposed to the government agent); Mayer, 503 F.3d at 747 (noting that the defendant was the first to broach the subject of traveling internationally to have sex with boys); United States v. Winslow, 962 F.2d 845, 849 (9th Cir.1992) (“At the time Valentino first targeted the appellants for investigation, both Winslow and Nelson had already expressed interest in blowing up establishments frequented by homosexuals.”); United States v. Wiley, 794 F.2d 514, 516 (9th Cir.1986) (“The drug distribution scheme between defendant and Garbiso was in existence before the government became involved; the government merely activated it.”). In the case before us, the government does not contend it had any individualized suspicion of any of the defendants as being involved in stash house robberies when it dispatched the Cl into the field to find persons willing to do such a robbery." } ]

[ { "docid": "195263", "title": "", "text": "owner. On the Chapter 7 schedules the Debtors listed the promissory note as a debt and the pickup truck as property of the estate. The Debtors also claimed the truck as an exemption from the estate. The Trustee objected to the claim of exemption, an Objection which was sustained by this Court on February 23, 1984. On December 21, 1983, the Trustee-Plaintiff filed this Complaint seeking a recovery of the truck which remained in the Debtors’ possession. At the Pre-Trial the Defendant-Debtor argued that her co-signature on the note was given in order to allow her son to purchase the truck. She further argued at the Pre-Trial that since her son was the only user of the vehicle, that he had made all the payments to the creditor, and that the intent of all parties involved was that the truck belonged to him, the truck should not properly be included in the estate. The record reflects that the time set on February 23, 1984, for the submission of arguments has expired and that only the arguments of the Trustee have been submitted. LAW The property which becomes part of the bankruptcy estate when a Petition is filed is addressed by 11 U.S.C. § 541(a) which states in pertinent part: “The commencement of a case under section 301, 302, or 303 of this title creates an estate. Such estate is comprised of all the following property, wherever located ... all legal or equitable interests of the debtor in property as of the commencement of the case.” As correctly argued by the Trustee, in Ohio, legal title to motor vehicles is evidenced only by the name of the owner on a duly certified certificate of title. See, Ohio Revised Code § 4505.04. Accordingly, the only owner which this Court may recognize as the actual owner of the vehicle is the Debtor. Pursuant to the provisions of § 541(a), her legal title has become part of the bankruptcy estate. This conclusion is supported by the fact that the Debtors, by inclusion of the truck on their schedule of property, have admitted that it" } ]

[ { "docid": "20239220", "title": "", "text": "(Bankr.S.D.N.Y.2007). For the reasons stated by the Eighth Circuit Bankruptcy Appellate Panel in In re Carlson, 394 B.R. 491 (8th Cir.BAP 2008), the Court agrees that relying upon the treatment of a tax refund in the event the debtors divorce is not appropriate. The relevant inquiry is not whether Mrs. Evans might be entitled to seek an equitable distribution of the funds upon some future dissolution of the marriage, but rather, whether she had a right to the funds at the time of the filing and whether that right subsequently became part of her bankruptcy estate, as opposed to her husband’s bankruptcy estate. As the court noted in Carlson, the goal of marital dissolution law is to equitably distribute assets between spouses, whereas the question of property ownership in this instance implicates the rights of each of the debtor’s creditors to each of the debtor’s assets. See also In re Crowson, 431 B.R. 484, 489 (10th Cir.BAP2010). The Debtors encourage the Court to respect the “family unit” by treating the Debtors as one. These Debtors’ estates are administered jointly pursuant to section 302(b). They have not been substantively consolidated. See In re Blair, 226 B.R. 502, 506 (Bankr.D.Me.1998). While this legal conclusion may be a distinction without a difference in cases in which the spouses own jointly all assets and owe jointly all debts, it is relevant in cases in which one spouse owns significant amounts of separate property or owes significant amounts of debt upon which the other spouse is not obligated. In such cases, determining the proper apportionment of the spouses’ assets is important to the trustee and the creditors and also respects the fact that the Code anticipates married debtors in a joint case will make separate claims to exemptions. See Carlson, 394 B.R. at 497 (“Allowing debtors to ‘transform’ separate property to joint property, with the result being to allow a co-debtor spouse to claim an exemption in property she does not own, or to allow a non-debtor spouse to keep half a tax refund out of the debtor-spouse’s estate, is not equitable.”); see also 11" }, { "docid": "21058310", "title": "", "text": "appeals in Sumy was not faced with the issue presented by these cases. While the facts of Sumy fully support the remedy given to the chapter 7 trustee, the case is not support for the debtors’ position here. Sumy merely continues the long line of cases originating with Krakower that are designed to prevent and remedy a particular type of abuse — creating an exemption in bankruptcy that does not exist at state law by manipulating the filing of petitions in bankruptcy by the spouses. It was intended to prevent an abuse, not create a new one. Neither Reid nor Sumy support the debtors’ proposition that administration of entireties property is limited to joint creditors. Substantive Consolidation The manner in which the cases are administered — that is, whether they are administratively consolidated or substantively consolidated — may be important to both the debtors and to the creditors. There is a difference between administrative consolidation and substantive consolidation. Administrative consolidation, or joint administration, is justified on the grounds of convenience and efficiency. 2 Collier on Bankruptcy ¶ 302.06, at 302-17 (15th ed. rev., 2000). Joint administration permits a trustee to administer two cases together, however, the individual estates remain legally distinct entities. The rights of the debtors, the creditors and the trustee are not altered. In re Blair, 226 B.R, 502, 505 (Bankr.D.Me., 1998); McCulley, 150 B.R. at 360. When a trustee pays allowed claims, creditors of each estate may receive different dividends. This arises from two factors: the assets recovered in each estate and the allowed claims in each case. Some creditors will be creditors of only one estate while others may be joint creditors. Some assets liquidated by the trustee may have belonged to one debtor alone. Other assets may have been joint assets. This may result in two estates with different amounts of money available for distribution to creditors holding different claims, claims different as to amount and priority. While all creditors of the same class in each estate will receive the same pro rata distribution, usually creditors of the two estates will receive a different percentage" }, { "docid": "12403990", "title": "", "text": "L.Ed.2d 169 (1988). This Court finds it within its equitable powers to convert this Debtor’s chapter 7 case into a-chapter 13. To hold otherwise would be to deny the Debtor’s intention to pay all creditors and subject her to an involuntary liquidation. Under section 1306(b), a chapter 13 debtor is considered a debtor in possession and is entitled to all property in the estate. Conversion of a case under section 706 terminates the service of the chapter 7 trustee. Section 348(e). Thus, the trustee must transfer the insurance proceeds to the Debt- or. CONCLUSION This Court finds that there is insufficient evidence of prejudice of the creditors to war rant substantive consolidation of the Joint Debtors’ separate estates. Under the Court’s equitable powers, the Debtor’s separate estate and case is converted to a case under chapter 13. The Trustee’s request for a set aside of $10,000.00 for administrative expenses is granted. Debtor’s counsel is directed to prepare an order in accordance with this Memorandum Decision within ten (10) days of the date of entry. . Unless otherwise noted, all references herein to \"section” refer to section of the Bankruptcy Code, 11 U.S.C. §§ 101-1330. . Federal Rule of Bankruptcy Procedure 1015(b) in relevant part provides: If a joint petition or two or more petitions are pending in the same court by or against (1) a husband and wife ..., the court may order a joint administration of the estates. Prior to entering an order the court shall give consideration to protecting creditors of different estates against potential conflicts of interest. . Although an old case, the opposing parties have offered no authority for this Court to question the holding in In re Dobbel’s Estate, 104 Cal. 432, 435, 38 P. 87 (1894), that the insurance proceeds are a spouse’s separate property even if purchased with community assets. . The Court declines to consider whether the Debtor is jointly liable for the partnership debts as this should be done in the context of the claims objection procedure. . The Court did find administratively consolidated cases where the court separately converted one" }, { "docid": "18154658", "title": "", "text": "of $3,734.00. The refund check was made payable to the debtor and his wife, although his wife earned no income and made no withholding payments in 2004. Following the debt- or’s individual Chapter 7 bankruptcy filing, the trustee filed a motion for turnover of $1,317.05 of the tax refund as estate property. The trustee calculated the estate’s interest in the tax refund by deducting, from the total amount of the refund, the debtor’s earned income tax credit and child tax credit, as well as the debtor’s remaining wild-card exemption that had not been claimed on Schedule C. See Ex. B to Debt- or’s Obj. to Trustee’s Mot. for Turnover, filed April 12, 2005 (Doc. 16). The debtor disputes the amount sought by the trustee, arguing that only one-half of the tax refund belongs to the debtor. The debtor contends that, after deducting applicable credits and exemptions, the estate’s interest is $80.95. Under § 541 of the Bankruptcy Code, commencement of a bankruptcy case creates an estate, which is comprised of “all legal or equitable interests of the debt- or in property” as of the petition date. See 11 U.S.C. § 541(a). The scope of estate property is very broad and includes every conceivable interest held by the debtor in property. See In re Smith, 310 B.R. 320, 322 (Bankr.N.D.Ohio 2004). Therefore, proceeds due from a tax overpayment, as in this case, become property of the estate to the extent the overpayment was made prepetition. Id. Despite the broad scope of § 541, however, property of a debtor’s estate does not include a third-party’s interest in property co-owned with the debtor. See, e.g., 11 U.S.C. § 363(h). It is upon this basis that the debtor argues that his wife’s one-half interest in the subject tax refund is not property of his bankruptcy estate. Neither this Court nor the Seventh Circuit Court of Appeals has ruled on the issue of whether a non-debtor spouse who earned no income and made no tax with-holdings during the tax year nevertheless has a property interest in a tax refund received after filing a joint return." }, { "docid": "19943949", "title": "", "text": "months after the child was born, Debtor’s wife began her employment. Debtor’s wife earned approximately thirty-one (31%) percent of the couple’s combined income for 2006, although she only worked for a few months. 5. On November 20, 2006, Debtor filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. Debtor’s wife has not sought relief under the Bankruptcy Code. 6. Debtor did not disclose any possible tax refund due to him in his Schedule B. 7. On December 22, 2006, Debtor testified at his § 341 meeting of creditors that he expected to receive a tax refund of approximately $1,000.00. Despite being asked his current marital status, Debtor failed to disclose that he and his wife were separated. 8. On or about February 5, 2007, Debt- or and his wife filed a joint return for tax year 2006, and the couple subsequently received a combined (State and Federal) tax refund of $4,666.00. 9. On February 15, 2007, the Trustee filed the Motion for Turnover of Property, whereby she seeks Debtor’s share of the 2006 tax refund. 10. On February 24, 2007, Debtor filed an Amended Schedule B indicating that Debtor anticipates receiving a $4,600.00 tax refund, but asserting that his share of that refund is only $2,200.00. Debtor also filed an Amended Schedule C, wherein Debtor seeks a $900.00 exemption for the anticipated tax refund. CONCLUSIONS OF LAW The filing of a bankruptcy petition by Debtor resulted in the creation of an estate subject to administration by the Trustee for the benefit of Debtor’s unsecured creditors. § 541(a). This estate is comprised of all legal or equitable interests of Debtor in property, including a tax refund, to the extent the overpayment was made prepetition. Campbell v. Woods (In re Woods), No. 97-80172-W, slip. op. at 5 (Bankr.D.S.C. Dec. 1, 1997). While the scope of “estate property” under § 541 is broad, a debtor’s bankruptcy estate does not include a third-party’s undivided interest in property co-owned with the debtor. In re Lock, 329 B.R. 856, 858 (Bankr.S.D.Ill.2005); In re Smith, 310 B.R. 320, 322 (Bankr.N.D.Ohio 2004); In re" }, { "docid": "3832184", "title": "", "text": "but to a separate entity referred to as the “unity” or “the marriage.” Id,.; see also In re Stanley, 122 B.R. 599, 604 (Bankr.M.D.Fla.1990). Therefore, with limited exceptions, entireties property does not become property of the bankruptcy estate when only one spouse has filed a bankruptcy petition. Mesa Petroleum Co. v. Coniglio, 16 B.R. 1015, 1021 (M.D.Fla.1982); see also Peeples, 105 B.R. at 94-95. In Florida, a viable tenancy by the entireties estate is created in either personalty or realty when the unities of possession, interest, title, time, and marriage are satisfied. Stanley, 122 B.R. at 604. If the matter involves personalty, the intent to create an entireties estate, at the time of acquisition, must be shown. Id. Such a requirement alleviates concern that the debtor will claim the personalty as entireties property so as to insulate it from claims of creditors of one of the spouses. Id. The burden of proof is not met solely by the debtor’s, or the non-filing spouse’s, testimony at the hearing on the objection to the claimed exemption. Id.; see also In re Spatola, 65 B.R. 49 (Bankr.S.D.Fla.1986). Rather, the debtor must provide a quantum of documentary proof establishing that an entireties estate was intended when the personalty was acquired. In re Allen, 208 B.R. 786, 791 (Bankr.M.D.Fla.1996). In this case, Debtor provided scant evidence to show that the household furnishings were acquired with the intent to be held entireties properties. The only evidence of such intent was testimony by Debtor, and her husband, that they consider the household furnishings to be jointly owned with survivorship rights. However, Debtor did not provide supplementary documentation to establish that a tenancy by the entireties was intended. Debtor’s failure to do provide such documentation is fatal to her claim of exemption. Therefore, the Trustee’s objection to Debtor’s claim of exemption, with respect to the household furnishings, is sustained. C. REAL PROPERTY The Trustee acknowledges that the real property is held as tenants by the entirety. However, the Trustee maintains that Debt- or’s joint debts with her non-filing spouse subjects the realty to administration for the benefit of" }, { "docid": "15640553", "title": "", "text": "requisite property interest in a tax refund which would entitle such spouse to an exemption.”); In re Honomichl, 82 B.R. 92, 94 (Bankr.S.D.Iowa 1987) (“a joint filing does not change the ownership of property rights between taxpayers.”); In re Carey, 1993 WL 541461 *2 (Judge Williams, Bankr.N.D.Ohio) (“refund of taxes paid by one spouse, who files jointly with the other spouse, remain the property of the wage-earning spouse.”). But see Loevy v. Aldrich (In re Aldrich), 250 B.R. 907, 913 (Bankr.W.D.Tenn.2000) (“in an appropriate case a non-income producing non-filing spouse, who is a homemaker that makes substantial contributions to the family, may be entitled to have a property interest in a joint tax refund check, notwithstanding that all the taxable income was generated by the debtor-spouse.”) Consequently, in this particular case, since the Debtor’s spouse did not contrib ute to any of the tax overpayments made in the year 2002, she has no property interest in any refund due therefrom which can be excluded from the Debtor’s bankruptcy estate. As a consequence, the Trustee, subject of course to any applicable exemptions, is conferred with the right to administer any refund that the Debtor is entitled to receive as the result of his 2002 year tax overpayment. As it concerns this decision, a few final observations. First, it is realized that pursuant to 26 U.S.C. § 6013(d)(3), a non-incoming producing spouse who signs a joint tax return is subject to joint and several liability for any tax owing. This predicament, however, is mitigated by the fact that the filing of a joint return is not mandatory, and as noted above, may confer upon both spouses certain tax advantages. The concern of joint and several liability is also alleviated by the fact that 26 U.S.C. § 6015 relieves an “innocent spouse” from any personal liability on a jointly filed tax return. Second, it is observed that this holding may also work against the bankruptcy estate in the reverse situation where a debt- or’s spouse, who is not in bankruptcy, is the only party contributing to the tax overpayment. Finally, it is noted" }, { "docid": "13817360", "title": "", "text": "granting the Blair’s motion would ensure that Rodney’s liabilities encompass Darlene’s (and hers, his). Discussion 1. Substantive Consolidation Rodney and Darlene filed their case jointly under § 302(a) which provides: A joint case under a chapter of this title is commenced by the filing with the bankruptcy court of a single petition under such chapter by an individual that may be a debtor under such chapter and such individual’s spouse. The commencement of a joint case under a chapter of this title constitutes an order for relief under such chapter. 11 U.S.C. § 302(b). However, as § 302(b) makes clear, the filing of a joint petition does not, by itself, consolidate the estates and their concomitant liabilities: “After the commencement of a joint case, the court shall determine the extent, if any, to which the debtor’s estates shall be consolidated.” § 302(b). One commentator has summarized the differences between joint administration and substantive consolidation as follows: Substantive consolidation must not be confused with the related procedure of joint administration. Joint administration is a procedure by which courts hear two or more related cases of entities that have filed bankruptcy petitions as a single case. The purpose of joint administration is to make case administration easier and less costly. The process has been called a “creature of procedural convenience,” because it avoids the duplication of effort that would result if cases involving related debtors were to proceed separately. The most significant difference between joint administration and substantive consolidation is that joint administration requires the estate of each debtor to be kept separate and distinct. Joint administration does not affect the substantive rights of creditors and other interested parties. Thus, administrative efficiency is achieved without sacrificing the parties’ substantive rights. Conversely, substantive consolidation effects a merger of the consolidated debtors’ estates, which creates a single estate that is recognized throughout the remaining bankruptcy process. J. Stephen Gilbert, Substantive Consolidation in Bankruptcy: A Primer, 43 Vand. L.Rev. 207, 212 (1990)(footnotes omitted). See also Fed. R. Bankr.P. 1015(b)(court may order joint administration of estates of husband and wife); Fed. R. Bankr.P.2009(a)(sin-gle trustee may oversee" }, { "docid": "13817362", "title": "", "text": "jointly administered estates); Fed. R. Bankr.P.2009(e)(trustee shall keep separate accounts for each jointly administered estate); Tisha Morris Federico, The Impact of the Defense of Marriage Act on Section 302 of the Bankruptcy Code and the Resulting Renewed Interest in the Equitable Doctrine of Substantive Consolidation, 103 Com. L.J. 82, 83-87 (1998). After substantive consolidation, “the consolidated estates create a single fund from which all of the claims of the consolidated debtors are satisfied.” Gilbert, supra, at 209. See also FDIC v. Colonial Realty Co., 966 F.2d 57, 58 (2d Cir.1992); Eastgroup Properties v. Southern Motel Assoc., Ltd., 935 F.2d 245, 248 (11th Cir.1991); Smith v. Mortgage Funding Corp. (In re Smith and Kourian), 216 B.R. 686, 687 n. 2 (1st Cir. BAP 1997); James F. Queenan et al., Chapter 11 Theory and Practice § 24.01 (1994). Of course, if substantive consolidation is appropriate, I must consider the U.S. Trustee’s dismissal motion in light of the Blairs’ consolidated assets and consolidated liabilities and must necessarily consider the totality of their joint circumstances in assaying whether granting them Chapter 7 relief would constitute a “substantial abuse.” Substantive consolidation is an equitable doctrine. See e.g., Reider v. FDIC (In re Reider), 31 F.3d 1102, 1105 (11th Cir.1994); Colonial Realty Co., 966 F.2d at 59; In re Smith and Kourian, 216 B.R. at 687 n. 2; see generally 4 Queenan, supra, §§ 24.01-24.22. Substantive consolidation of joint debtors’ separate estates is a matter within my discretion, see Fed. R. Bankr.P. 1015 advisory committee’s note, but that discretion must be exercised to effect a fair result to the parties whose interests will be affected (viz creditors). See In re Birch, 72 B.R. 103, 106 (Bankr.D.N.H.1987)(spouses’ estates would not be consolidated because to do so would affect the creditors of each differently and the estates were not inextricably entwined); In re Snider Brothers, 18 B.R. 230, 234 (Bankr.D.Mass.l982)(“[T]he only real criterion is ... the economic prejudice of continued debtor separateness versus the economic prejudice of consolidation.”). Absent substantive consolidation, Rodney’s creditors may look to Rodney’s assets (and, in Chapter 13 or outside bankruptcy, Rodney’s assets and" }, { "docid": "17980123", "title": "", "text": "S.W.2d 493 (Tenn.App.1978) (“[Wjhen personalty is jointly acquired by husband and wife without limitations or conditions attached to it, it becomes entirety property with a right of survivorship.”). Since the property was held by Mr. and Mrs. Crowell as tenants by the entirety, the property interest of each estate was limited to a survivorship interest. In re Walls, 45 B.R. 145 (Bankr.E.D.Tenn.1984). The debt- or’s right to the use, possession, and income from this property passed out of his estate pursuant to the “automatic” exemption allowed under 11 U.S.C. § 522(b)(2)(B) (West 1979). Waldschmidt v. Hamilton, 32 B.R. 337, 339 (Bankr.M.D.Tenn.1983); Waldschmidt v. Shaw, 5 B.R. 107 (Bankr.M.D.Tenn.1980). Accordingly, the estates could sell only the debtors’ survivorship interests in the property and keep any proceeds above the amount exempted. The trustee asserts that the debtors’ joint petition operated to substantively consolidate the estates and, accordingly, obviates any need to examine the effect of Mr. Crowell’s death on the ownership interest of either estate. To determine the effect of a joint petition requires an examination of the property interests of each estate separately. Under 11 U.S.C. § 302(a) (West 1979), a case is commenced with the filing of a single petition by an individual that may be a debtor and such individual's spouse. “Section 302 is designed for ease of administration and to permit the payment of only one filing fee.... but separate estates will exist for each debtor unless and until the court orders substantive consolidation of the estates.” In re Stuart, 31 B.R. 18 (Bankr.D.Conn.1983). Rule 1015 of the Federal Rules of Bankruptcy Procedure provides that the court may order joint administration of a joint petition. In order to substantively consolidate the two estates under a joint petition, the court must make a determination pursuant to 11 U.S.C. § 302(b) (West 1979). The court has ordered neither joint administration nor consolidation in this bankruptcy proceeding. Accordingly, the court must treat the two estates separately in dealing with the property interests at issue and, to determine these interests, consider the effect of Mr. Crowell’s death. Since Rule 1016 of the" }, { "docid": "18548660", "title": "", "text": "a Chapter 7 trustee’s administration the non-exempt entirety equity in Debtors’ principal residence from their respective bankruptcy estates to the extent only one spouse is liable on a debt. This interpretation is consistent with bankruptcy courts in other jurisdictions which, applying laws of different states, have concluded that a Chapter 13 debtor may claim tenancy by the entirety property as exempt under § 522(b)(2)(B) as to individual creditors. See In re Chandler, 148 B.R. 13, 15 (Bankr.E.D.N.C.1992); In re Banks, 22 B.R. 891 (Bankr.W.D.N.C.1982); In re Thomas, 14 B.R. 423, 427-28 (Bankr.N.D.Ohio 1981) Cf. In re Digaudio, 127 B.R. 713 (Bankr.D.Mass.1991) (applying the Massachusetts statute and state judicial interpretations). This Court concludes that after payment of joint debts, entirety equity is returned to each owner as an entirety interest and not as an interest in common. III. Calculating non-exempt equity in the residence Debtor argues that spouses cannot be forced to file jointly. That very well may be true, but § 1325(a)(4) requires an analysis based upon the liquidation of a particular debtor’s estate. Since each did, in fact, file a separate case the Court must conduct a separate § 1325(a)(4) analyses: Residential Fair Market Value = $54,100 (minus) Hypothetical real estate broker fee = $ 3,787 (minus) Homestead exemption = $ 8,000 (minus) Head of household exemption = $ 1,350 (minus) First mortgage = $ 7,960 = $33,003 TOTAL NON-EXEMPT RESIDENTIAL EQUITY Thus, the Debtors have $33,003 in nonexempt equity in their principal residence held by tenancy-in the entirety. Once the aggregate amount of joint debt ($8,829) is subtracted from this equity, $24,174 remains. A hypothetical Chapter 7 Trustee would allocate one half of this sum, or $12,087, to each spouse or to each spouse’s estate. See § 363(j) ; In re Meyer, 187 B.R. 650, 652 (Bankr.W.D.Mo.1995), but as discussed above, this amount would be exempt from administration from each individual Debtor’s hypothetical estate pursuant to § 522(b)(2)(B). Husband has separate unsecured debts of $15,170 and Wife has separate unsecured debts of $19,895. Chapter 7 creditors could not reach any of the entirety equity to the extent only" }, { "docid": "12147453", "title": "", "text": "joint income tax refund is attributable has no ownership interest in the refund. As a result, Coal-ee was not entitled to claim exemptions in the refunds resulting solely from Brian’s withholdings. The Bankruptcy Court’s Order sustaining the Trustee’s objection to her exemption is, therefore, AFFIRMED. . The Honorable Nancy C. Dreher, Chief Bankruptcy Judge, United States Bankruptcy Court for the District of Minnesota. . First Nat'l Bank of Olathe v. Pontow (In re Pontow), 111 F.3d 604, 609 (8th Cir.1997); Sholdan v. Dietz (In re Sholdan), 108 F.3d 886, 888 (8th Cir.1997); Fed. R. Bankr.P. 8013. . In re Kleinfeldt, 287 B.R. 291, 292 (10th Cir. BAP 2002). . In re Benn, 491 F.3d 811, 813 (8th Cir.2007) (\"A debtor’s anticipated tax refund, to the extent it is attributable to events occurring prior to the filing of the petition for bankruptcy, is part of the bankruptcy estate.”). .See Thomas v. Peyton, 274 B.R. 450, 456 (E.D.Va.2001) (“When spouses file a joint petition for bankruptcy, the separate estates are administratively consolidated for convenience and efficiency but they remain legally distinct for purposes of satisfying creditors' claims.”); In re Beck, 298 B.R. 616, 624 (Bankr.W.D.Mo. 2003) (\"Although the filing of a joint case creates an estate under 11 U.S.C. § 541, separate estates exist for each debtor, unless or until the court orders substantive consolidation.”); 11 U.S.C. § 522(m) (\"Subject to the limitation in subsection (b), this section shall apply separately with respect to each debtor in a joint case.”). . See In re Kleinfeldt, 287 B.R. at 292 (listing the three approaches) (citing In re Lyall, 191 B.R. 78, 85 (E.D.Va.1996)). . See, e.g., Kleinfeldt, 287 B.R. at 292-93; In re WDH Howell, 294 B.R. 613, 618 (Bankr. D.N.J.2003); In re Levine, 50 B.R. 587 (Bankr.S.D.Fla.1985). . See, e.g., In re Kestner, 9 B.R. 334 (Bankr. E.D.Va.1981). . See, e.g., In re Trickett, 391 B.R. 657 (Bankr. D.Mass.2008); In re Marciano, 372 B.R. 211 (Bankr.S.D.N.Y.2007). In re Barrow, 306 B.R. 28 (Bankr. W.D.N.Y.2004); In re Hejmowski, 296 B.R. 645 (Bankr.W.D.N.Y. 2003); Loevy v. Aldrich (In re Aldrich), 250 B.R. 907, 913" }, { "docid": "15640548", "title": "", "text": "417 U.S. 642, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974); Segal v. Rochelle, 382 U.S. 375, 380, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966). Nevertheless, while the scope of § 541 is very broad, it is specifically limited to a debtor’s interest in the property; third-party interests are not included. Therefore, a debtor’s bankruptcy estate will not include a third-party’s undivided interest in property eo-owned with the debtor. In re Murray, 31 B.R. 499, 501-02 (Bankr.E.D.Pa.1983). See also 11 U.S.C. § 363(h)/(j) (recognizing co-owner’s separate interest in property owned with the debtor). It is based upon this tenet, by which the Debtor argues that on account of their joint tax filing, one-half of the proceeds due from his tax overpayment belong solely to his wife, and thus did not become property of his bankruptcy estate. In response, however, the Trustee argues that the Debtor’s spouse, despite being a cosignatory on the Debtor’s tax return, has no interest in any refund that became due because she did not contribute to the overpayment. For purposes of § 541(a), whether a party has an interest in property and the extent of that interest is determined by applicable nonbankruptcy law. Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 917-18, 59 L.Ed.2d 136 (1979). As this rule relates to a non-earning spouse’s property interest in the other spouse’s tax overpayment, a court in this same division has held two things. In re Taylor, 22 B.R. 888, 890 (Bankr.N.D.Ohio 1982). First, Ohio law, and not federal tax law, controls the issue of whether a debtor has an interest in a tax overpayment. Id. at 890. Second, and at the heart of the instant matter, despite being a cosignatory, a “non-income producing spouse has no property interest, ... in an income tax refund made jointly payable to husband and wife debtors.” Id. at 891. As a basis for these holdings, the Court In re Taylor adopted the legal reasoning previously set forth in Butz v. Wheeler, 17 B.R. 85 (Bankr.S.D.Ohio 1981), stating: ... the mere signing of a joint husband and wife tax return" }, { "docid": "20239221", "title": "", "text": "estates are administered jointly pursuant to section 302(b). They have not been substantively consolidated. See In re Blair, 226 B.R. 502, 506 (Bankr.D.Me.1998). While this legal conclusion may be a distinction without a difference in cases in which the spouses own jointly all assets and owe jointly all debts, it is relevant in cases in which one spouse owns significant amounts of separate property or owes significant amounts of debt upon which the other spouse is not obligated. In such cases, determining the proper apportionment of the spouses’ assets is important to the trustee and the creditors and also respects the fact that the Code anticipates married debtors in a joint case will make separate claims to exemptions. See Carlson, 394 B.R. at 497 (“Allowing debtors to ‘transform’ separate property to joint property, with the result being to allow a co-debtor spouse to claim an exemption in property she does not own, or to allow a non-debtor spouse to keep half a tax refund out of the debtor-spouse’s estate, is not equitable.”); see also 11 U.S.C. § 522(m). Contrary to the Debtors’ suggestion, the Trustee is not asking the Court to change its position on the apportionment of a joint asset. The law has always required the Court to respect the individual ownership of property by spouses in a joint case unless the cases have been substantively consolidated. Those bankruptcy courts adopting what is often referred to as the “majority” rule — that the refund should be divided based upon the withholding — have done so in reliance upon the fact that the applicable state law does not presume equal ownership of property by spouses. See Carlson, 394 B.R. at 494 (applying Minnesota law); In re Smith, 310 B.R. 320 (Bankr.N.D.Ohio 2004) (applying Ohio law). Georgia law, like that applicable in the Carlson case, has no presumption of equal ownership of property between spouses. See O.C.G.A. § 19-3-9 (“The separate property of each spouse shall remain the separate property of that spouse, except as provided in Chapters 5 and 6 of this title and except as otherwise provided by law.”)." }, { "docid": "19943950", "title": "", "text": "the 2006 tax refund. 10. On February 24, 2007, Debtor filed an Amended Schedule B indicating that Debtor anticipates receiving a $4,600.00 tax refund, but asserting that his share of that refund is only $2,200.00. Debtor also filed an Amended Schedule C, wherein Debtor seeks a $900.00 exemption for the anticipated tax refund. CONCLUSIONS OF LAW The filing of a bankruptcy petition by Debtor resulted in the creation of an estate subject to administration by the Trustee for the benefit of Debtor’s unsecured creditors. § 541(a). This estate is comprised of all legal or equitable interests of Debtor in property, including a tax refund, to the extent the overpayment was made prepetition. Campbell v. Woods (In re Woods), No. 97-80172-W, slip. op. at 5 (Bankr.D.S.C. Dec. 1, 1997). While the scope of “estate property” under § 541 is broad, a debtor’s bankruptcy estate does not include a third-party’s undivided interest in property co-owned with the debtor. In re Lock, 329 B.R. 856, 858 (Bankr.S.D.Ill.2005); In re Smith, 310 B.R. 320, 322 (Bankr.N.D.Ohio 2004); In re Murray, 31 B.R. 499, 501-02 (Bankr.E.D.Pa.1983). While the parties do not dispute that some portion of the tax refund belongs to the estate, Debtor objects to the Trustee’s allocation of the refund. Debtor argues that his wife has a one-half interest in the subject tax refund and therefore her portion is not property of the bankruptcy estate. The Trustee concedes that some portion of the tax refund belongs to Debt- or’s wife, but argues that the pre-petition portion should be allocated proportionally in accordance with the income produced by Debtor and his wife. Thus, the issue to be determined is the amount of the tax refund that constitutes property of Debt- or’s estate. This is an issue of first impression in this district. Bankruptcy courts in other districts have adopted three different approaches to determine the portion of a tax refund to which a debtor’s estate is entitled when a joint tax return has been filed with a non-debtor spouse. The majority approach holds that the tax refund from a joint tax return should be" }, { "docid": "12924508", "title": "", "text": "of a single petition under such chapter by an individual that may be a debtor under such chapter and such individual’s spouse. The commencement of a joint ease under a chapter of this title constitutes an order for relief under such chapter. (b) After the commencement of a joint case, the court shall determine the extent, if any, to which the debtor’s estates shall be consolidated. 11 U.S.C. § 302. “Section 302(a) permits a married couple to file a joint petition. Section 302 is designed for ease of administration and to permit the payment of one filing fee. In re Crowell, 53 B.R. 555, 557 (Bankr.M.D.Tenn.1985). But, as the Debt- or points out, the joint petition actually creates two separate bankruptcy estates.” In re Estrada, 224 B.R. 132, 135 (Bankr.S.D.Cal.1998) (citations omitted). Unless the joint debtors’ estates are consolidated by the Court pursuant to § 302(b), the two estates remain separate. In re Estrada, 224 B.R. at 135. Rule 1015(b) of the Federal Rules of Bankruptcy Procedure supports the conclusion that the filing of a joint case creates two separate estates. Rule 1015(b) provides in part: Rule 1015. Consolidation or Joint Administration of Cases Pending in Same Court (b) CASES INVOLVING TWO OR MORE RELATED DEBTORS. If a joint petition or two or more petitions are pending in the same court by or against (1) a husband and wife .... the court may order a joint administration of the estates. Prior to entering an order the court shall give consideration to protecting creditors of different estates against potential conflicts of interest. ... Fed.R.Bankr.P. 1015(b)(Emphasis supplied). See also In re Goldstein, 383 B.R. 496, 500 (Bankr.C.D.Cal.2007). The Eleventh Circuit Court of Appeals adheres to the determination that the filing of a joint petition creates two separate estates. “The filing of a joint petition by a husband and wife does not result in the automatic substantive consolidation of the two debtors’ estates.... Used as a matter of convenience and cost saving, it does not cx-eate substantive rights.” In re Reider, 31 F.3d 1102, 1109 (11th Cir.1994). “Under joint administration, the estate of" }, { "docid": "13817361", "title": "", "text": "which courts hear two or more related cases of entities that have filed bankruptcy petitions as a single case. The purpose of joint administration is to make case administration easier and less costly. The process has been called a “creature of procedural convenience,” because it avoids the duplication of effort that would result if cases involving related debtors were to proceed separately. The most significant difference between joint administration and substantive consolidation is that joint administration requires the estate of each debtor to be kept separate and distinct. Joint administration does not affect the substantive rights of creditors and other interested parties. Thus, administrative efficiency is achieved without sacrificing the parties’ substantive rights. Conversely, substantive consolidation effects a merger of the consolidated debtors’ estates, which creates a single estate that is recognized throughout the remaining bankruptcy process. J. Stephen Gilbert, Substantive Consolidation in Bankruptcy: A Primer, 43 Vand. L.Rev. 207, 212 (1990)(footnotes omitted). See also Fed. R. Bankr.P. 1015(b)(court may order joint administration of estates of husband and wife); Fed. R. Bankr.P.2009(a)(sin-gle trustee may oversee jointly administered estates); Fed. R. Bankr.P.2009(e)(trustee shall keep separate accounts for each jointly administered estate); Tisha Morris Federico, The Impact of the Defense of Marriage Act on Section 302 of the Bankruptcy Code and the Resulting Renewed Interest in the Equitable Doctrine of Substantive Consolidation, 103 Com. L.J. 82, 83-87 (1998). After substantive consolidation, “the consolidated estates create a single fund from which all of the claims of the consolidated debtors are satisfied.” Gilbert, supra, at 209. See also FDIC v. Colonial Realty Co., 966 F.2d 57, 58 (2d Cir.1992); Eastgroup Properties v. Southern Motel Assoc., Ltd., 935 F.2d 245, 248 (11th Cir.1991); Smith v. Mortgage Funding Corp. (In re Smith and Kourian), 216 B.R. 686, 687 n. 2 (1st Cir. BAP 1997); James F. Queenan et al., Chapter 11 Theory and Practice § 24.01 (1994). Of course, if substantive consolidation is appropriate, I must consider the U.S. Trustee’s dismissal motion in light of the Blairs’ consolidated assets and consolidated liabilities and must necessarily consider the totality of their joint circumstances in assaying whether granting" }, { "docid": "12403991", "title": "", "text": "Unless otherwise noted, all references herein to \"section” refer to section of the Bankruptcy Code, 11 U.S.C. §§ 101-1330. . Federal Rule of Bankruptcy Procedure 1015(b) in relevant part provides: If a joint petition or two or more petitions are pending in the same court by or against (1) a husband and wife ..., the court may order a joint administration of the estates. Prior to entering an order the court shall give consideration to protecting creditors of different estates against potential conflicts of interest. . Although an old case, the opposing parties have offered no authority for this Court to question the holding in In re Dobbel’s Estate, 104 Cal. 432, 435, 38 P. 87 (1894), that the insurance proceeds are a spouse’s separate property even if purchased with community assets. . The Court declines to consider whether the Debtor is jointly liable for the partnership debts as this should be done in the context of the claims objection procedure. . The Court did find administratively consolidated cases where the court separately converted one of the cases. In re Sibarium, 107 B.R. 108, 109 (N.D.Tex.1989). .The trustee’s opposition states there are approximately $186,570.11 in partnership claims while the Court's claims register lists unsecured claims in an approximate amount of $133,-775.57, and the schedules reflect secured claims of $122,265.00, both amounts well within the confines of section 109(e)'s requirements for a chapter 13 debtor. Additionally, the filed schedules reflect that the Debtor has a regular monthly income of $5,537.00." }, { "docid": "15640552", "title": "", "text": "the immutable logic of the court’s reasoning in In re Taylor, there is simply no basis to limit it to solely the context of a non-incoming producing spouse’s claiming an exemption in the tax refund of the other spouse. Thus, this Court takes the position that, for purposes of § 541(a), a spouse has no interest in the proceeds due from any tax refund as the result of the other spouse making a tax overpayment. As for other courts, this, by far, is the prevailing view on the issue. See, e.g., In re Kleinfeldt, 287 B.R. 291, 292-93 (10th Cir. BAP 2002) (nondebtor spouse who had no tax withholdings does not have an interest in half of the tax refund despite the filing of a joint tax return); In re WDH Howell, LLC, 294 B.R. 613, 620 (Bankr.D.N.J.2003) (non-incoming producing spouse did not have any interest in tax refund checks representing a return of wages earned by her debtor-husband pre-petition); In re Smith, 77 B.R. 633, 635 (Bankr.N.D.Ohio 1987) (“non-income producing debtor-spouse is without a requisite property interest in a tax refund which would entitle such spouse to an exemption.”); In re Honomichl, 82 B.R. 92, 94 (Bankr.S.D.Iowa 1987) (“a joint filing does not change the ownership of property rights between taxpayers.”); In re Carey, 1993 WL 541461 *2 (Judge Williams, Bankr.N.D.Ohio) (“refund of taxes paid by one spouse, who files jointly with the other spouse, remain the property of the wage-earning spouse.”). But see Loevy v. Aldrich (In re Aldrich), 250 B.R. 907, 913 (Bankr.W.D.Tenn.2000) (“in an appropriate case a non-income producing non-filing spouse, who is a homemaker that makes substantial contributions to the family, may be entitled to have a property interest in a joint tax refund check, notwithstanding that all the taxable income was generated by the debtor-spouse.”) Consequently, in this particular case, since the Debtor’s spouse did not contrib ute to any of the tax overpayments made in the year 2002, she has no property interest in any refund due therefrom which can be excluded from the Debtor’s bankruptcy estate. As a consequence, the Trustee, subject" }, { "docid": "1174642", "title": "", "text": "U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979) (interests in property determined under state law); In re Crowell, 53 B.R. 555, 557 (Bankr.M.D.Tenn.1985) (“To determine the effect of a joint petition requires an examination of the property interests of each estate separately.”). Thus, in a community property state, like Texas, property owned by one or both of the spouses may include the separate property of the wife, the separate property of the husband, “special” or sole management community property of the wife and of the husband which is hable for the individual debts of the non-manager spouse, and jointly owned community property. That there are two estates each consisting of each spouses’ respective separate property and sole management community property plus the community’s interest in joint community property is supported by the very section that recognizes joint petitions. Section 302(b) provides: After the commencement of a joint case, the court shall determine the extent, if any, to which the debtors’ estates shall be consolidated. 11 U.S.C.A. § 302(b). This provision has been consistently interpreted to signify that a joint filing results in two estates, absent an order of substantive consolidation by the court. See In re Chandler, 148 B.R. 13 (Bankr.E.D.N.C.1992). “Absent a court Order to consolidate, joint administration has absolutely no impact on the legal rights and obligations of the Debtors[s], Creditors, or the Trustee.” In re McCulley, 150 B.R. 358, 360 (Bankr.M.D.Pa.1993); see also In re Scholz, 57 B.R. 259 (Bankr.N.D.Ohio 1986); In re Crowell, 53 B.R. 555, 557 (Bankr.M.D.Tenn.1985); Ohio v. Wilkinson, 24 B.R. 474 (Bankr.S.D.Ohio 1982). Thus, while joint cases generally “will be administered jointly, unless there is an objection[,] [consolidation, ..., is not typically granted unless a party seeks it and there is proper justification.” 1 Norton Bankr. L. & Prac.2d § 19.11 & n. 85, at 19-23 (Clark Boardman Callaghan 1993) (citing In re Coles, 14 B.R. 5 (Bankr.E.D.Pa.1981)). Hence, the legislative admonition that “ “[t]his section ... is not a license to consolidate in order to avoid other provisions of the title to the detriment of either the debtors or their creditors." } ]

[ { "docid": "21178393", "title": "", "text": "application the art was fully aware of the substitution of Cl and CF3 potentiating groups in phenothiazines analogous to those now claimed by Zenitz. The examiner held, and the board agreed, that the substitution of CF3 for Cl in the phenothiazines disclosed by Cusic, would be obvious to one of ordinary skill in the art. Zenitz contends that the Cusic, Gulesich and Ullyot patents are not available as references for an obviousness rejection under Section 103 because they issued on applications which, although filed earlier than his, were copending therewith. Zenitz maintains that he could not have been aware of the Cusie or Gulesieh disclosures at the time he filed his application. This court has held in a number of decisions that a United States patent speaks for all it discloses as of its filing date, even when used in combination with other references. In re Kander, 312 F.2d 834, 50 CCPA 928; In re Gregg, 244 F.2d 316, 44 CCPA 904; In re Seid, 161 F.2d 229, 34 CCPA 1039. In re Harry, 333 F.2d 920, 51 CCPA, --, decided concurrently herewith, holds that 35 U.S.C. § 103 is in pari materia with 35 U.S.C. § 102(e) and points out that the latter section was intended to enact the rule of Alexander Milburn Co. v. Davis-Bournonville Co., 270 U.S. 390, 46 S.Ct. 324, 70 L.Ed. 651, wherein the court said: “ * * * The delays of the patent office ought not to cut down the effect of what has been done. The description shows that Whitford was not the first inventor. Clifford had done all that he could do to make his description public. He had taken steps that would make it public as soon as the Patent Office did its work, although, of course, amendments might be required of him before the end could be reached. We see no reason in the words or policy of the law for allowing Whitford to profit by the delay and make himself out to be the first inventor when he was not so in fact, when Clifford had shown knowledge" } ]

[ { "docid": "22934601", "title": "", "text": "with undeveloped areas is at least partially completed prior to substantial permeation and development of the next inner emulsion layer by said liquid composition. In allowing it, the board pointed out that it is limited to control of diffusibility by layerwise permeation, which, the board said, “the art of reocrd * * * does not suggest * * As appellants’ brief correctly points out, the issues require an adjudication of the obviousness of each of the 30 appealed claims in view of the prior art but before we can do this we have to deal with Point 2 of that brief raising questions as to whether some of the references underlying the rejection are, in law, available as prior art. This question, as argued, falls into two parts. What References are “Prior Art” — Part I This first aspect of the question involves the issue recently before the United States Supreme Court in Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 147 USPQ, 429 (1965). The Land, Rogers ’606, and Yutzy patents were all copending with the application on appeal. The statutory ground of rejection involved in this question is 35 USC 103 obviousness. Though appellants concede such references are “prior art” under section 102, they raised the old question whether, in view of the unavailability of the contents of pending applications under 35 USC 122, the patents issuing thereon are available as prior art to show obviousness under section 103, as of their filmg dates in the United States. See 35 USC 102(e). Appellants held this question open in their brief, filed May 7, 1965, because Haz&ltine was then pending before the Supreme Court. December 8, 1965, the point was decided adversely to appellants. Patents otherwise available as references may be used singly or combined as of their U.S. filing dates to support section 103 rejections though copending with the application at bar. We so held in In re Harry, 51 CCPA 1541, 333 F. 2d 920, 142 USPQ 164 (1964). With respect to this case, that makes Yutzy clearly available as a reference, no other question being raised" }, { "docid": "23495780", "title": "", "text": "facts” but mere pleading. It asserts that facts exist but does not tell what they are or when they occurred. The Patent Office must have such facts as will enable it and its reviewing'courts to judge whether there was construction and when it occurred, or whether there was dilb gence. The affidavits were properly rejected for non-compliance with the rule and all of the references are available. ' On the merits of the rejection on the references, we can find no error in the ruling of the Patent Office that it would be obvious, in •view of the secondary references, singly or together, to modify the ■structure of Shutt, the primary reference, by adding more telescoping sections and shortening all of the sections as necessary to reduce headroom requirements. We cannot see here a case of “hindsight reasoning” as alleged by appellant. It is clear to us that one familiar with the art, all of which relates to rigid, vertically moving, overhead crane structures of one kind or another, faced with the problem of reducing headroom requirement would, if possessed of any mechanical skill whatsoever, increase the number and reduce the length of ■the telescoping sections. The rest is routine engineering design to produce the proper movements and desired relative speeds of travel. Appellant argues, with respect to the Ernestus patent, that it was improperly used in support of a rejection under 35 U.S.C. 103, because it did not issue prior to Harry’s filing date. This court has often answered that argument before. The Ernestus patent’s filing date antedates any date on which appellant can rely and that is enough. In re Seid, 34 CCPA 1039, 161 F. 2d 229, 73 USPQ 431, and cases there cited; In re Gregg, 44 CCPA 904, 244 F. 2d 316, 113 USPQ 526, and In re Kander, 50 CCPA 928, 312 F. 2d 834, 136 USPQ 477. As was pointed out in the Gregg case, it had become settled, at least in this court, prior to the 1952 Patent Act “that a patent issued on an application which was copending with that of" }, { "docid": "23495781", "title": "", "text": "headroom requirement would, if possessed of any mechanical skill whatsoever, increase the number and reduce the length of ■the telescoping sections. The rest is routine engineering design to produce the proper movements and desired relative speeds of travel. Appellant argues, with respect to the Ernestus patent, that it was improperly used in support of a rejection under 35 U.S.C. 103, because it did not issue prior to Harry’s filing date. This court has often answered that argument before. The Ernestus patent’s filing date antedates any date on which appellant can rely and that is enough. In re Seid, 34 CCPA 1039, 161 F. 2d 229, 73 USPQ 431, and cases there cited; In re Gregg, 44 CCPA 904, 244 F. 2d 316, 113 USPQ 526, and In re Kander, 50 CCPA 928, 312 F. 2d 834, 136 USPQ 477. As was pointed out in the Gregg case, it had become settled, at least in this court, prior to the 1952 Patent Act “that a patent issued on an application which was copending with that of another applicant could properly be used as a reference against the claims of the other applicant even though'it did not disclose everything claimed, -and it was necessary to combine it with other references.” [Em-phasis added.] When a reference is so used, the rejection, of necessity, is based on section 103. We are not unaware that such use of so-called “copending patents” as references, where they are not complete anticipations under section 102, has long been a subject of debate, which debate has. continued under section 102(e) of the 1952 Act. In view of the fact that the practice is as old as this court (see In re Smith, 17 CCPA 752, 36 F. 2d 522, 4 USPQ 235, decided in 1929 and cited hi the Seid case), our latest application of it in the Kander case should not have come as a surprise to any one. We there rested squarely on the proposition that section 102(e) settles the question, making United States patents effective references as of the U.S. filing dates for all purposes, whether" }, { "docid": "22455933", "title": "", "text": "we are not convinced that synergism of the latter compositions is unexpected. Thus we consider the appellant’s composition to be obvious within the meaning of section 103. Although neither appellant nor the Patent Office raise the point in their briefs, claims 4-7 and 8-13 define appellant’s composition with greater specificity than claim 1. Nevertheless we consider these claims unpatentable. The quantity limitations of claims 4-7 do not distinguish appellant’s composition from “Salcort.” Appellant alleges no criticality in such limitations other than the broad assertion that “it is preferred to use smaller quantities of each of the essential active ingredients in the composition than when each such active ingredient is used alone to obtain a particular therapeutic response.” Apparently “Salcort” satisfies this desideratum. As to claims 8-13 we agree with the board, which sustained the examiner stating: Claims 8 to 13 are directed to composition including a salicylate and pred-nisone or prednisolone together with certain other ingredients. Appellant has not urged any patentable significance in these additional ingredients and we find none. The prior art shows that certain antacid materials and vitamin derivatives may also he included in this type of composition. The decision of the board is affirmed. Appellant’s specification states that the terms “prednisone” and “prednisolone” as used in the specification mean not only the alcohols delta-l-cortisone and delta-l-hydrocortisone, respectively, but also the therapeutically active 21-esters thereof, when the free alcohol is intended, it is referred to as “prednisone free alcohol” or “prednisolone free alcohol.” (Prednisone and cortisone differ solely in that the former has a double bond between the ,1 and 2 positions of the steroid nucleus, the latter a single bond. Prednisolone and hydro-cortisoné.differ in the same way. Apparently the board means \"clearly suggested” since the prior art does not anticipate the claims.under 35 U.S.C. 102(a). The nature of the rejection manifestly indicates that 35 U.S.C. 103 was intended by the board to be the basis for the rejection.. It would have been lielpflil, however, if the statutory basis had been expressly stated. We feel compelled/ to comment on the Patent Office analysis by which patentability under" }, { "docid": "22455926", "title": "", "text": "CCPA 928; 288 Fed (2d) 940; 129 USPQ 288. Further, the examiner had previously stated in his answer, The showings of record attempting to establish synergism in the claimed compositions are conceded to show improved results over the “Salcort” composition or Holt et al. combination therapy. * * * It is not believed that the issue here turns on the ability of an investigator to predict that the particular claimed steroids will be ’operable to give the improved result, 'but rather whether there is any reason to suppose that such steroids, generally, accepted in the art as being themselves improvements over cortisone acetate, would not be suitable. Applicant has not advanced any reason or presented any evidence that the prior art taught against prednisone or prednisolone in lieu of the cortisone of the “Sal-cort” or Holt et al. references. Therefore it would be expected that where the later available analogs of cortisone are known to be many times more physiologically active and otherwise to be preferred for lack of side effects over cortisone, that antirheumatic compositions containing said later available analogs would also be more active and have greater acceptability. Appellant argues that the Patent Office position is based on oversimplification of the problem of finding new anti-inflammatory agents with minimal side effects; that the mere existence of salicylate-cortisone tablets does not suggest substituting for cortisone the later-discovered more potent cortisone derivatives, prednisone and prednisolone; and that synergism attained by the new composition is unexpected. We affirm the rejection, however, since we believe the subject matter of the invention considered as a whole would have been obvious to one skilled in the art at the time the invention was made. But we do so on a rationale somewhat different from that of the Patent Office. Both the board and the solicitor consider the fact of superior pharmaceutical properties immaterial to determining obviousness. The board states, “The fact that the claimed composition produced certain heretofore undisclosed advantages does not, in our opinion, render the claims patentable. Since it is our view that the claimed combination is clearly taught by the prior" }, { "docid": "2605121", "title": "", "text": "Miller et al. process or are wholly obvious over the features of said process which are disclosed.” In affirming, the board said: “* * * appellants have merely adapted the Miller et al. process to continuous operation which we believe to be well within the skill of a person versed in this art.” We agree. Appellants point to the fact that their application and the copend-ing Miller et al. patent are commonly owned. They argue that the reference, therefore, may support only a double-patenting rejection. Since, in appellants’ opinion, the • rejection is properly double-patenting, they allege error in the use of the Miller et al. disclosure as prior art. See, e.g., In re Hammell, 51 CCPA 1469, 1472, 332 F. 2d 796, 799, 141 USPQ, 832, 834 (1964). We must reject the premise that common ownership and copendency in themselves necessarily preclude consideration of a patent as a part of the prior art. A United States patent to another is a valid prior art reference when its United States filing date is earlier than the date of the applicant’s invention. 35 USC 102(e); Alexander Milburn Co. v. Davis-Bournonville, 270 U.S. 390 (1926). Appellants’ filing date, no earlier date having been proved, is their date of invention. A patent is “to another” when the “inventive entities” are different, In re Land, 54 CCPA 806, 368 F. 2d 866, 151 USPQ 621 (1966), and may then be used as prior art to make the determination required by 35 USC 103. Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 147 USPQ 429 (1965); In re Harry, 51 CCPA 1541, 333 F. 2d 920, 142 USPQ 164 (1964); see In re Hilmer, 53 CCPA 1287, 359 F. 2d 859, 149 USPQ 480 (1966). Appellants would have us carve out an exception to 35 USC 102(e) in the guise of interpreting “to another.” They recognize that in In re Land, supra, we decided that Land, as sole inventor, and Rogers, as sole inventor, were each “another” to Land and Rogers as joint inventors, despite the common ownership and copendency of the reference patents and" }, { "docid": "22934602", "title": "", "text": "with the application on appeal. The statutory ground of rejection involved in this question is 35 USC 103 obviousness. Though appellants concede such references are “prior art” under section 102, they raised the old question whether, in view of the unavailability of the contents of pending applications under 35 USC 122, the patents issuing thereon are available as prior art to show obviousness under section 103, as of their filmg dates in the United States. See 35 USC 102(e). Appellants held this question open in their brief, filed May 7, 1965, because Haz&ltine was then pending before the Supreme Court. December 8, 1965, the point was decided adversely to appellants. Patents otherwise available as references may be used singly or combined as of their U.S. filing dates to support section 103 rejections though copending with the application at bar. We so held in In re Harry, 51 CCPA 1541, 333 F. 2d 920, 142 USPQ 164 (1964). With respect to this case, that makes Yutzy clearly available as a reference, no other question being raised as to its availability. As to the Land and Eogers ’606 references, however, appellants raise the second part of the question about availability, based on our decision in In re Blout and Rogers, 52 CCPA 751, 333 F. 2d 928, 142 USPQ 173 (1964). They admit that they did not argue this point of law before the board, nor could they have done so as Blout and Rogers was not decided until more than four months after the board decision. The solicitor’s brief objects to our considering it on the usual ground that we do not generally consider points not raised below, citing In re Herthel, 36 CCPA 1095, 174 F. 2d 935, 82 USPQ 55, In re Panagrossi et al., 47 CCPA 904, 277 F. 2d 181, 125 USPQ 410, and In re Soli, 50 CCPA 1288, 317 F. 2d 941, 137 USPQ 797. We find nothing in those cases or in the two other cases cited in Herthel which precludes us from dealing with this point of law. In none of those cases" }, { "docid": "22455928", "title": "", "text": "art.” The solicitor states, “Whether the art recognized that the claimed combination ‘might demonstrate concert of action of its elements in the significant area of lessened adrenal atrophy’ is immaterial, since the sole issue in this appeal is whether it would have been obvious to substitute prednisone or pred-nisolone for cortisone in the combination of Salcort or Holt, and not whether it would be obvious that such substitution would produce lessened adrenal atrophy.” We do not entirely agree with this framing of the issue. This court has frequently stated that properties of chemical compounds must be considered in determining obviousness under 35 U.S.C. 103. In re Lambooy, 49 CCPA 985, 300 F. 2d 950, 133 USPQ 270; In re Petering and Fall, 49 CCPA 993, 301 F. 2d 676, 113 USPQ 275; In re Papesch, 50 CCPA 1084, 315 F. 2d 381, 137 USPQ 42. We think this also applies to such compositions as we have here, i.e., admixtures of two or more compounds. Therefore, the issue of obviousness in this case can be resolved only after considering the differences between the prior art and the claimed compositions chemically and in view of their pharmaceutical' properties. To do so we consider the cited references and what we believe they would teach one skilled in the art. Appellant agrees that cortisone-salicylate mixtures are anti-inflammatory agents, and that prednisone and prednisolone possess anti-inflammatory activity three to four times as great as cortisone or hydrocortisone. The disagreement revolves around interpretation of Holt et al. Appellant contends that Holt et al. do not “suggest” substitution of prednisone or prednisolone for cortisone, since their data áre “inconclusive” and warn of “toxic complications.” Further appellant argues that one skilled in the art, upon finding that prednisone and prednisolone possess enhanced potency without increased side effects, would cease looking for better anti-inflammatory agents. We do not agree with appellant’s interpretation of Holt et al., pertinent portions of which state (all emphasis onrs) : When planning this new study [including combined salicylate-cortisone therapy] we could find no report of combined treatment of this kind. We expected to reach" }, { "docid": "22455925", "title": "", "text": "“Salcort” combination. Since it is known thlat the steroids employed by appellant have the same effect as cortisone, except for being more potent,, it appears to us that it would be- obvious-to at least try -to substitute those steroids for cortisone in. combinations in which cortisone had been employed such as in the “Salcort” composition. The fact that the claimed composition produced certain heretofore undisclosed advantages does not, in our opinion, render the claims patentable. Since it is our view that the claimed combination is clearly taught by the prior art. See In re Libby, 45 CCPA 944; 1958 C.D. 324; 118 USPQ 94; 733 O.G. 294 ; 255 Fed. (2d) 412; and In re Gauerke, 1937 C.D. 119; 475 O.G. 3; 24 CCPA 725; 86 Fed. (2d) 330. We do not consider the contentions relative to the fact that Holt et al. did not employ controls or that the results there may have been considered somewhat uncertain material to our conclusion. Obviousness does not require absolute predictability. In re Moreton, 771 O.G. 621; 48 CCPA 928; 288 Fed (2d) 940; 129 USPQ 288. Further, the examiner had previously stated in his answer, The showings of record attempting to establish synergism in the claimed compositions are conceded to show improved results over the “Salcort” composition or Holt et al. combination therapy. * * * It is not believed that the issue here turns on the ability of an investigator to predict that the particular claimed steroids will be ’operable to give the improved result, 'but rather whether there is any reason to suppose that such steroids, generally, accepted in the art as being themselves improvements over cortisone acetate, would not be suitable. Applicant has not advanced any reason or presented any evidence that the prior art taught against prednisone or prednisolone in lieu of the cortisone of the “Sal-cort” or Holt et al. references. Therefore it would be expected that where the later available analogs of cortisone are known to be many times more physiologically active and otherwise to be preferred for lack of side effects over cortisone, that antirheumatic" }, { "docid": "1407902", "title": "", "text": "and Observer article, thus the reliance on Palmquist was not well founded. The solicitor also points out that the two lines of argument are inconsistent, the appellant arguing on the one hand that the invention had not been comfleted prior to the article which therefore cannot be a barring anticipatory disclosure, and, on the other hand, that the invention had been comfleted prior to the publication, and in view of Palmquist the article was not an available reference for a section 103 rejection. Appellant’s reply brief is devoted almost entirely to the argument based on Palmquist, urging that since The News and Observer article is a report of appellant’s own invention it is both absurd and unnecessary to require him to swear behind it, citing M.P.E.P. 715.01(c). We think the contradiction between the two lines of appellant’s argument is more apparent than real. As we see it, appellant is arguing that The News and Observer article is not a complete disclosure, and so much of the invention as was disclosed therein was made prior to the publication thereof. Nevertheless, the line of argument concerning the unavailability of The News and Observer article has been rendered moot by our recent decision in In re Foster, 52 CCPA 1808, 343 F. 2d 980, 145 USPQ 166, in which that aspect of In re Palmquist relied on by appellant for support was explicitly overruled. We agree with the board’s holding that The News and Observer article is a valid reference under 35 U.S.C. 102(b) for what is disclosed therein, since it was available to the public for more than a year prior to applicant’s filing date. In re Ruscetta, 45 CCPA 968, 255 F. 2d 687, 118 USPQ 101; In re Foster, supra. The publication is not removed as a reference merely because it discloses appellant’s own invention, or an early stage of that invention, and the publication, having been available to the public for more than a year, may not be overcome by a showing of invention prior to the publication date. The question then is to determine what is disclosed therein" }, { "docid": "22455924", "title": "", "text": "also known in the art respectively as prednisone and prednisolone. The rejection is stated by the board as “lacking in invention over ^Salcort’ and the Holt et al. publication in view of the Drug Trade News or Bunim et al. references.” Although not specifically stated, 35 TJ.S.C. 103 is obviously the statutory basis. The sole issue before us is, therefore, obviousness of the claimed composition in view of the ■cited prior art. The Patent Office position is that one skilled in the art, knowing of the “Salcort” composition and knowing of the results of the combined therapy of Holt et al., would obviously substitute the later-discovered more physiologically active prednisone or prednisolone for cortisone in “Salcort” to produce a better anti-inflammatory composition. Improved results, conceded to be shown by appellant, are considered immaterial in the Patent Office .view since the composition is obvious. As stated bythe board, We are of tbe opinion that it would readily occur to one skilled in this art that these more potent steroids could be substituted for cortisone in the “Salcort” combination. Since it is known thlat the steroids employed by appellant have the same effect as cortisone, except for being more potent,, it appears to us that it would be- obvious-to at least try -to substitute those steroids for cortisone in. combinations in which cortisone had been employed such as in the “Salcort” composition. The fact that the claimed composition produced certain heretofore undisclosed advantages does not, in our opinion, render the claims patentable. Since it is our view that the claimed combination is clearly taught by the prior art. See In re Libby, 45 CCPA 944; 1958 C.D. 324; 118 USPQ 94; 733 O.G. 294 ; 255 Fed. (2d) 412; and In re Gauerke, 1937 C.D. 119; 475 O.G. 3; 24 CCPA 725; 86 Fed. (2d) 330. We do not consider the contentions relative to the fact that Holt et al. did not employ controls or that the results there may have been considered somewhat uncertain material to our conclusion. Obviousness does not require absolute predictability. In re Moreton, 771 O.G. 621; 48" }, { "docid": "15483843", "title": "", "text": "as to a single species. See In re Kyrides, 159 F.2d 1019, 34 CCPA 920. Here Rausser et al. was awarded priority on the basis of the disclosure of the hydrogen species in their parent application, being entitled to its filing date, July 22, 1957, as the date of conception and constructive reduction to practice. Since it has been adjudicated that Taub et al. did not meet their burden of proof showing they were the first inventors of the 9-hydrogen species, they cannot be said to be the first inventors thereof. However, no such determination as to the 9a-fluoro species was made. Since both parties in eifect rest on their filing dates as to the 9a-fluoro species, the record indicates that Taub et al. are prior as to that species, their parent case being earlier than the Rausser et al. continuation case. Thus, within the fact pattern here, logic dictates that count 2 cannot be the prior invention of another applicable against Taub et al. insofar as the 9a-fluoro species is concerned, under section 102(g). Thus the rejection must fall, and it becomes necessary to remand the case for a full consideration of the issue on which appellants attempted to join the Patent Office, the determination of whether the 9a-fluoro species is obvious over the 9-hydrogen species of the count in view of appellants’ affidavits. We do not read In re Fenn, 50 CCPA 1163, 315 F.2d 949, 137 USPQ 367; In re Boileau, 163 F.2d 562, 35 CCPA 727; In re Cole, 82 F.2d 405, 23 CCPA 1057, or In re Sola, 77 F.2d 627, 22 CCPA 1313 to the contrary. Similarly, since the holding in In re Gregg, 244 F.2d 316, 44 CCPA 904, 907, was founded on the fact that “there is no evidence to show completion of the invention covered by the appealed claims by appellant at any time prior to Coakwell’s filing date,” that is, “the Coakwell patent is a reference under Section 102(e) * * we do not find that case to indicate a contrary result. For the foregoing reasons the rejection of the" }, { "docid": "15080608", "title": "", "text": "Inc., the assignee of the application here on appeal. Both appellants’ application and briefs, and the art of record contain various meanings for the term “synergism.” Solimán defines “synergism” to mean the algebraic summation of desirable efleets. Goodman terms this “summation.” The opposite, algebraic summation of undesirable effects is termed “antagonism” by Solimán. Where the combined action is unexpectedly greater than the algebraic sum, it is termed “potentiation” by both Goodman and Solimán, or “supplemental synergism” (Solimán alone). The usual meaning appears to be that of Goodman, algebraic summation being termed summation or mere addition, and where the combined action is greater than the sum of the actions of the ingredients, the term “synergism” applies, In re Huellmantel, 51 CCPA 845, 324 F. 2d 998, 139 USPQ 496 ; In re Luvisi, 52 CCPA 1063, 342 F. 102, 144 USPQ 646. What section 103 requires is “unexpected synergism,” In re Huellmantel, supra, 51 CCPA at 850, the same as “potentiation” or “supplemental synergism” in the art of record here. Thus we read appellants’ second position to be that the results obtained upon the administration of the therapeutic composition demonstrate unexpected synergism in the reduction of dosage. Appellants’ evidence does not refute that view. Some 161 pages of the record are devoted to about 94 “Adenocort Case Reports” (some are duplicates) In which It Is Indicated that the following preparations were previously used to treat collagen disease conditions found amenable to “Adenocort” in the Case Reports: ACTH, Adenolin, Pablate, Calcium gluconate, Hypos, of Demerol/Phenergan [sic], Oral Codein/MS/Demerol, Tetracystine-Penieillin [sic], Sodium Salicylate-ASA Comp.-Anthropan Reía [sic] Betathiolin, Vltamins-Cod liver oil, Calcium, Sal-[unreadable], Hydrocortone TBA, Cortisone, Steroids, Buta-[unreadable], Protaxisol, My-[unreadable], Sigmagen, Madribon, Dela-pyryn Succinate, Antocort [sic], Adenolin Porte, Soma, Extensive Rx, other medication, Papase, Darvon Comp., My-B-Den, Equanil plus other tranquilizers, Prem/Te-[unreadable], BI2-Vitamin B, Analgesics, and unknown medications. Additionally, the sworn letter of Hein, supra fn. Indicates: * * * foreign protein, sulfur, gold, ACTH, cortisone type drugs, hydrocortisone, sali-cylates, enzymes, butazolidln type therapy, hydroxychloroquine preparations, and some of the newer steroids to mention a few * * * gre presently utilized In the" }, { "docid": "22219231", "title": "", "text": "the respective Bernstein teachings which show that 16a-hydroxy substituents are found on closely related steroids, the Bernstein compounds themselves differing from the claimed compounds solely in the absence of a 6a-methyl substituent. Thus appellants are not, nor do they pretend to be, the first to 6-methylate or 16-hydroxylate steroids of the type here involved. What appellants have done is to provide hydrocortisones bearing both these substituents and, accordingly, novelty of the claimed compounds has been conceded. While the issue could be stated, alternatively, as the converse of the above, we see no reason why our statement is not a proper interpretation of the examiner’s rejection. Appellants admit there are “gross structural similarities” between the compounds of claims 3 and 5 and the compounds Spero and Bernstein, but argue that “one need look only to the recent decisions of this Honorable Court to ascertain that the obviousness of chemical compounds, even of homologs * * *, is no longer to be predicated solely on structural similarity. * * * Here, the superimposition or ‘mechanistic overlaying’ of the compounds of Bernstein and Spero is clearly inappropriate to render the claimed compounds obvious * * *.\" citing In re Riden, Jr., 50 CCPA 1411, 318 F. 2d 761, 138 USPQ 112 for the latter proposition. We agree with appellants’ admonitions against deciding questions of chemical obviousness on the basis of structure alone, whether by means of a “mechanistic overlay” or otherwise. However, we think appellants have failed to present adequate evidence to overcome a prima facie showing of obviousness by reason of the admitted “gross structural similarities” of the art compounds, coupled with the fact those compounds are shown to have utility in the same area of pharmacological activity. During prosecution, appellants presented two affidavits, both by William E. Dulin, an employee of appellants’ assignee, The Upjohn Company, Kalamazoo, Michigan, which convincingly establish that the compound of claim 3 is 4.7 times more effective as an anti-inflammatory agent than the closest compound of Bernstein (IV) and that the compound of claim 5 is 1.6 times more effective as an anti-inflammatory agent than the" }, { "docid": "3971520", "title": "", "text": "not well founded. The solicitor also points out that the two lines of argument are inconsistent, the appellant arguing on the one hand that the invention had not been completed prior to the article which therefore cannot be a barring anticipatory disclosure, and, on the other hand, that the invention had been completed prior to the publication, and in view of Palmquist the article was not an available reference for a section 103 rejection. Appellant’s reply brief is devoted almost entirely to the argument based on Palmquist, urging that since The News and Observer article is a report of appellant’s own invention it is both absurd and unnecessary to require him to swear behind it, citing M.P.E.P. 715.01(c). We think the contradiction between the two lines of appellant’s argument is more apparent than real. As we see it, appellant is arguing that The News and Observer article is not a complete disclosure, and so much of the invention as was disclosed therein was made prior to the publication thereof. Nevertheless, the line of argument concerning the unavailability of The News and Observer article has been rendered moot by our recent decision in In re Foster, 343 F.2d 980, 52 CCPA-, in which that aspect of In re Palmquist relied on by appellant for support was explicitly overruled. We agree with the board’s holding that The News and Observer article is a valid reference under 35 U.S.C. § 102(b) for what is disclosed therein, since it was available to the public for more than a year prior to applicant’s filing date. In re Ruscetta, 255 F.2d 687, 45 CCPA 968; In re Foster, supra. The publication is not removed as a reference merely because it discloses appellant’s own invention, or an early stage of that invention, and the publication, having been available to the public for more than a year, may not be overcome by a showing of invention prior to the publication date. The question then is to determine what is disclosed therein and whether that disclosure, taken with prior art, renders the claimed invention obvious to one of ordinary" }, { "docid": "6022936", "title": "", "text": "family forms a homologous series, the constant difference between successive members being one carbon atom and two hydrogen atoms, e. g., CH4 (methane), C2H5 (ethane), etc. See notes 9-10 supra, for definitions of analogs and isomers. . See E. I. DuPont de Nemours & Co. v. Ladd, 117 U.S.App.D.C. 246, 328 F.2d 547 (1964); Parker v. Marzall, 92 F. Supp. 736 (D.D.C.1950); Application of Papesch, 315 F.2d 381, 50 CCPA 1084 (1963). . See, e. g., Application of Lohr, 317 F.2d 388, 50 CCPA 1274 (1963). . For recent discussion see Application of McLamore, 379 F.2d 985, 989-990 (C.C.P.A.1967); Application of Wagner, 371 F.2d 877 (C.C.P.A.1967); Application of Lunsford, 357 F.2d 380 (C.C.P.A.1966). . See Western, Is 35 U.S.C. § 103 Applicable to Chemical Compounds? 8 Idea 443 (1964); Note, 32 Geo.Wash. L.Rev. 429 (1963). . The Commissioner's position, here paraphrases the Board of Patent Appeals in Papeseh: Such proof of advantages is not seen to occupy a different relationship than proof of commercial success or of the “filling of a long-felt want” often considered as sufficient to establish patentability in cases where some doubt of unobviousness exists, but which have been consistently held as insufficient alone to override the holding of unpatentability in a clear case of obviousness. Papesch, supra, 315 F.2d at 386 (emphasis by court). It was rejected by the Papeseh court. It may well be true that in the field of chemistry, the discovery of useful properties will be the factor primarily responsible for commercial success or a solution to a long felt need, but that alone does not make it a secondary factor. . As was stated at a recent seminar on pharmaceutical invention, [t]ake away the concept of molecular modification and very few of our most outstanding drugs would be available today. Thus, the difference between morphine and codeine is a methyl group; between 11 desoxycorticosterone, which does nothing for humans, and cortisone, which does everything, is one oxygen atom. Seminar, Pharmaceutical Invention, 47 J. Pat.Oi'V.Soc’y 648, 682 (1965). . We are not unmindful that we are dealing in the area commonly referred to" }, { "docid": "2605122", "title": "", "text": "the date of the applicant’s invention. 35 USC 102(e); Alexander Milburn Co. v. Davis-Bournonville, 270 U.S. 390 (1926). Appellants’ filing date, no earlier date having been proved, is their date of invention. A patent is “to another” when the “inventive entities” are different, In re Land, 54 CCPA 806, 368 F. 2d 866, 151 USPQ 621 (1966), and may then be used as prior art to make the determination required by 35 USC 103. Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 147 USPQ 429 (1965); In re Harry, 51 CCPA 1541, 333 F. 2d 920, 142 USPQ 164 (1964); see In re Hilmer, 53 CCPA 1287, 359 F. 2d 859, 149 USPQ 480 (1966). Appellants would have us carve out an exception to 35 USC 102(e) in the guise of interpreting “to another.” They recognize that in In re Land, supra, we decided that Land, as sole inventor, and Rogers, as sole inventor, were each “another” to Land and Rogers as joint inventors, despite the common ownership and copendency of the reference patents and application on appeal. They ask us to overrule that case because it fails to take into account modern research techniques in which groups rather than individuals make inventions. Appellants argue that the disclosure of these inventions can only be delayed by a system which makes available the patents issued to one part of a group as prior art against the applications of another part. Appellants’ argument is not without some basis. However, it predicates an elasticity of the statute which we do not find. We are not dealing here with the judicially developed aspects of the law of double patenting, as appellants would have us assume, but with the legislatively declared content of the “prior art.” We decline to overrule In re Land, supra, and hold that the Miller et al patent was properly cited as prior art against appellants’ application. Appellants argue, however, that even if the Miller et al. specification is prior art, their invention is nonetheless unobvious. They rely ■on their claim limitations on the five process parameters to impart that unobviousness." }, { "docid": "15080607", "title": "", "text": "that phrase particularly meaningless since the effect of drugs or reactivity of chemical compounds can be nothing else than “Inherent.” But Inherency is not obviousness. See In re Adams, 53 CCPA 996, 356 F. 2d 998, 148 USPQ 742, 746. Dorland’s Illustrated Medical Dictionary, (23rd Ed., 1957) p. SO, defines ACTH as: ACTH, Adrenocorticotrophie hormone, elaborated by the anterior lobe of the pituitary gland, which influences the action of the adrenal cortex and causes the release of cortisone therefrom. The U.S. Dispensatory reference describes one form of “by-B-Den,” A5MP as available “in 10-ml. vials containing a sustained action vehicle (gelatin-base) with 20 mg. per ml. of adenoslne-5-monophosphate (as the sodium salt).” Appellants have included In their brief a statement that the 1963 edition of Physician’s Desk Reference shows more than 225 anti-inflammatory products, and for the treatment of bursitis approximately 140 preparations are listed, and 170 therapeutic agents are listed under the treatment of arthritis. That statement apparently is taken from a sworn letter of record by Mr. Gary L. Hein, President of Lincoln Laboratories, Inc., the assignee of the application here on appeal. Both appellants’ application and briefs, and the art of record contain various meanings for the term “synergism.” Solimán defines “synergism” to mean the algebraic summation of desirable efleets. Goodman terms this “summation.” The opposite, algebraic summation of undesirable effects is termed “antagonism” by Solimán. Where the combined action is unexpectedly greater than the algebraic sum, it is termed “potentiation” by both Goodman and Solimán, or “supplemental synergism” (Solimán alone). The usual meaning appears to be that of Goodman, algebraic summation being termed summation or mere addition, and where the combined action is greater than the sum of the actions of the ingredients, the term “synergism” applies, In re Huellmantel, 51 CCPA 845, 324 F. 2d 998, 139 USPQ 496 ; In re Luvisi, 52 CCPA 1063, 342 F. 102, 144 USPQ 646. What section 103 requires is “unexpected synergism,” In re Huellmantel, supra, 51 CCPA at 850, the same as “potentiation” or “supplemental synergism” in the art of record here. Thus we read appellants’ second position" }, { "docid": "22455927", "title": "", "text": "compositions containing said later available analogs would also be more active and have greater acceptability. Appellant argues that the Patent Office position is based on oversimplification of the problem of finding new anti-inflammatory agents with minimal side effects; that the mere existence of salicylate-cortisone tablets does not suggest substituting for cortisone the later-discovered more potent cortisone derivatives, prednisone and prednisolone; and that synergism attained by the new composition is unexpected. We affirm the rejection, however, since we believe the subject matter of the invention considered as a whole would have been obvious to one skilled in the art at the time the invention was made. But we do so on a rationale somewhat different from that of the Patent Office. Both the board and the solicitor consider the fact of superior pharmaceutical properties immaterial to determining obviousness. The board states, “The fact that the claimed composition produced certain heretofore undisclosed advantages does not, in our opinion, render the claims patentable. Since it is our view that the claimed combination is clearly taught by the prior art.” The solicitor states, “Whether the art recognized that the claimed combination ‘might demonstrate concert of action of its elements in the significant area of lessened adrenal atrophy’ is immaterial, since the sole issue in this appeal is whether it would have been obvious to substitute prednisone or pred-nisolone for cortisone in the combination of Salcort or Holt, and not whether it would be obvious that such substitution would produce lessened adrenal atrophy.” We do not entirely agree with this framing of the issue. This court has frequently stated that properties of chemical compounds must be considered in determining obviousness under 35 U.S.C. 103. In re Lambooy, 49 CCPA 985, 300 F. 2d 950, 133 USPQ 270; In re Petering and Fall, 49 CCPA 993, 301 F. 2d 676, 113 USPQ 275; In re Papesch, 50 CCPA 1084, 315 F. 2d 381, 137 USPQ 42. We think this also applies to such compositions as we have here, i.e., admixtures of two or more compounds. Therefore, the issue of obviousness in this case can be resolved" }, { "docid": "22934603", "title": "", "text": "as to its availability. As to the Land and Eogers ’606 references, however, appellants raise the second part of the question about availability, based on our decision in In re Blout and Rogers, 52 CCPA 751, 333 F. 2d 928, 142 USPQ 173 (1964). They admit that they did not argue this point of law before the board, nor could they have done so as Blout and Rogers was not decided until more than four months after the board decision. The solicitor’s brief objects to our considering it on the usual ground that we do not generally consider points not raised below, citing In re Herthel, 36 CCPA 1095, 174 F. 2d 935, 82 USPQ 55, In re Panagrossi et al., 47 CCPA 904, 277 F. 2d 181, 125 USPQ 410, and In re Soli, 50 CCPA 1288, 317 F. 2d 941, 137 USPQ 797. We find nothing in those cases or in the two other cases cited in Herthel which precludes us from dealing with this point of law. In none of those cases was it a point of law that we declined to consider but rather such things as the interpretation of a word (Herthel), the factual significance of a claim limitation, a question of operability, the construction of a claim (Panagrossi), and the propriety of actions of the examiner to which response could have been made in the Patent Office (Soli). Generally speaking, we decline to consider questions which could and should have been raised in- the Patent Office so that we have the benefit of the views of its trained personnel on matters within their special competence .and so that the Patent Office has the opportunity to furnish its position as expert on technical questions, the interpretation.of references, applications, and the like. We will, nevertheless consider a question of law, such as the availability of a reference, which is necessary to the determination of patentability. In re Schoenwaldt, 52 CCPA 1258, 343 F. 2d 1000, 145 USPQ 289, 290. Indeed, we believe we are in a position, to interpret our own opinion in Blout cmd Rogers" } ]

[ { "docid": "22093035", "title": "", "text": "This second judgment was affirmed on appeal. In re S. R. A., Inc., 219 Minn. 493, 18 N. W. 2d 442. Certiorari was sought under § 237 (b) of the Judicial Code.- It was granted because of the importance and uncertainty of the question of the right of a State to tax realty sold by the United States in possession of a buyer from the Government under a contract of sale with uncompleted conditions for execution and delivery of the muniments of title. 326 U. S. 703. The supremacy of the Federal Government in our Union forbids the acknowledgment of the power of any State to tax property of the United States against its will. Under an implied constitutional immunity, its property and operations must be exempt from state control in tax, as in other matters. M’Culloch v. Maryland, 4 Wheat. 316, 425, et seq.; Van Brocklin v. Tennessee, 117 U. S. 151, 177; United States v. Allegheny County, 322 U. S. 174, 176-77. This postulate, as a matter of federal law, forces final decision of the validity of claimed exemptions under this immunity upon this Court. United States v. Allegheny County, supra, 183, and cases cited. The impact of state taxation on federal operations may be so close and threatening as to compel judicial intervention to declare the state tax invalid, as in the M’Culloch case, or so remote and incidental as to justify a federal court in refusing to relieve a taxpayer from a state tax. Alabama v. King & Boozer, 314 U. S. 1. The Ijne of taxability is somewhat irregular and has varied through the years.* * The right of a State to tax realty directly depends primarily upon its territorial jurisdiction over the area. The realty of petitioner had been conveyed to and used by the United States for the essential governmental activities which authorized the exercise of its exclusive legislative jurisdiction.' Exclusive legislative power is in essence complete sovereignty. That is, not only is the federal property immune from taxation because of the supremacy of the Federal Government but state laws, not adopted directly" } ]

[ { "docid": "22554184", "title": "", "text": "112 N. Y. 310; 19 N. E. 845; Emperor of Brazil v. Robinson, 5 Dowl. Pr. 522; Otho, King of Greece, v. Wright, 6 Dowl. Pr. 12; The Beatrice, 36 L. J. Rep. Adm. (N. S.) 10; Queen of Holland v. Drukker, (1928) Ch. 877, 884, although the local soverign does not pay costs. United States v. Verdier, 164 U. S. 213, 219. The foreign sovereign suing, as a plaintiff must give discovery. Rothschild v. Queen of Portugal, 3 Y. & C. Ex. 594, 596; United States v. Wagner, L. R. 2 Ch. App. 582, 592, 595; Prioleau v. United States, L. R. 2 Eq. 659. A foreign sovereign plaintiff “should so far as the thing can be done be put in the same position as a body corporate.” Republic of Costa Rica v. Erlanger, L. R. 1 Ch. D. 171, 174; Republic of Peru v. Weguelin, L. R. 20 Eq. 140, 141; cf. King of Spain v. Hullett, 7 Bligh N. S. 359, 392. The presumption of a grant by lapse of time will be indulged against the domestic sovereign. United States v. Chaves, 159 U. S. 452, 464. The rule nullum tempus has never been extended to agencies or grantees of the local sovereign such as municipalities, county boards, school districts' and the like. Metropolitan R. Co. v. District of Columbia, 132 U. S. 1; Boone County v. Burlington & Missouri River R. Co., 139 U. S. 684, 693. It has been- held not to relieve the sovereign from giving the notice required by local law to charge endorsers of negotiable paper, United States v. Barker, 12 Wheat. 559; cf. Cooke v. United States, 91 U. S. 389, 398; Wilber National Bank v. United States, 294 U. S. 120, 124, and in tax cases has been narrowly construed against the domestic sovereign. Bowers v. New York & Albany Lighterage Co. 273 U. S. 346, 350. Compare United States v. Knight, 14 Pet. 301; Fink v. O’Neil, 106 U. S. 272. The United States accorded recognition to the Provisional Government March 16, 1917 and continued to recognize it until" }, { "docid": "4309786", "title": "", "text": "to establish a probability of the fact that in reality a grant was ever issued. It will afford a sufficient ground for the presumption to show that, by legal possibility, a grant might have been issued. And this appearing, it may be assumed in the absence of circumstances repelling such conclusion that all that might lawfully have been done to perfect the legal title was in fact done, and in the form prescribed by law.’ ” These principles were affirmed as applicable to grants of the kind we are considering in United States v. Chaves, 159 U. S. 452. Mr. Justice Shiras, speaking for the court, said: “ \"Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure, whenever by possibility a right may be acquired in any manner known to the law. 1 Greenleaf Ev. 12th ed. § 17; Ricard v. Williams, 7 Wheat. 59, 109; Coolidge v. Learned, 8 Pick. 508. Nothing, it is true, can be claimed by prescription which owes its origin to, and can only be had by, matter of record; but lapse of time, accompanied by acts done or other circumstances, may warrant the jury in presuming a grant or title by record. Thus, also, though lapse of time does not of itself furnish a conclusive- bar to the title of the sovereign, agreeably to the maxim, nullum tempus oeeurrid regi; yet if the adverse claim could have had a legal commencement, juries are advised or instructed to presume such commencement, after many years of uninterrupted possession or enjoyment. Accordingly royal grants have been thus found by the jury, after an indefinitely long-continued peaceful enjoyment-accompanied by the usual acts of ownership. 1 Green-leaf Ev. § 45. “The principle upon which this doctrine rests is one of general jurisprudence, and" }, { "docid": "23601464", "title": "", "text": "be applied as a presumptio juris et de jure, wherever, by possibility, a right may be acquired in any manner known to the law. 1 Greenleaf Ev. 12th ed. § 17; Ricard v. Williams, 7 Wheat. 59, 109; Coolidge v. Learned, 8 Pick. 503. Nothing, it is true, can be claimed.by prescription which owes its origin to, and can only be had by, matter of record; but lapse, of time accompanied by acts done, or other circumstances, may warrant the jury in presuming a grant or title by record. Thus, also, though lapse of time does not, of itself, furnish a conclusive bar to the title of the sovereign, agreeably to the maxim, nullum tempus occurrit regi; yet, if the adverse claim .could have a legal commencement, juries are advised or instructed to presume such commencement, after many years of uninterrupted possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an indefinitely long-continued peaceful enjoyment, accompanied by the usual acts of ownership. 1 Greenl. Ev. § 45. The principle upon which this doctrine rests is one of general jurisprudence, and is recognized in the Roman law and the codes founded thereon, Best’s Principles of Evidence, § 366, and was, therefore, a feature of the Mexican law at the time of the cession. Finally, the rule of the law of nations, that private property in territory ceded by one nation to another, when held by a title vested before the act of cession, should be respected; the express provisions to that effect contained in the treaty between Mexico and the United States; the evidence of the fact of a grant, legal under the forms of Mexican law, and of a juridical possession given thereunder, and the strong presumption growing out of an exclusive and uninterrupted possession and enjoyment of more than half a century, bring us to concur in the decree of the court below. The objection that the Atlantic and JPacifio Railroad Company, as grantee from the United States, of a part of the tract in question, was a necessary party defendant,'has not been pressed" }, { "docid": "22069941", "title": "", "text": "by the law of any State,’ ” id., at 26 (quoting 322 U. S., at 183). Allegheny does not stretch as widely as the United States suggests. That case concerned whether certain property belonged to the United States and, if so, whether the incidence of a state tax was on the United States or on a Government contractor. See id., at 181-183, 186-189. Neither the United States nor any United States agency is a party to this ease, and the auxiliary matter here involved scarcely resembles the controversy in Allegheny. The dissent nowhere suggests that uniform, court-declared federal law would govern the carrier’s subrogation claim against the tortfeasor. Nor does the dissent explain why the two linked provisions — reimbursement and subrogation — should be decoupled. As the Court in Grable observed, 545 U. S., at 312, the classic example of federal-question jurisdiction predicated on the centrality of a federal issue is Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921). Justice Breyer, with whom Justice Kennedy, Justice Souter, and Justice Alito join, dissenting. This case involves a dispute about the meaning of terms in a federal health insurance contract. The contract, between a federal agency and a private carrier, sets forth the details of a federal health insurance program created by federal statute and covering 8 million federal employees. In all this the Court cannot find a basis for federal jurisdiction. I believe I can. See Clearfield Trust Co. v. United States, 318 U. S. 363 (1943). I A There is little about this case that is not federal. The comprehensive federal health insurance program at issue is created by a federal statute, the Federal Employees Health Benefits Act of 1959 (FEHBA), 5 U. S. C. §8901 et seq. (2000 ed. and Supp. III). This program provides insurance for Federal Government employees and their families. That insurance program today covers approximately 8 million federal employees, retirees, and dependents, at a total cost to the Government of about $22 billion a year. Brief for United States as Amicus Curiae 2. To implement the statute, the Office" }, { "docid": "4309787", "title": "", "text": "possibility a right may be acquired in any manner known to the law. 1 Greenleaf Ev. 12th ed. § 17; Ricard v. Williams, 7 Wheat. 59, 109; Coolidge v. Learned, 8 Pick. 508. Nothing, it is true, can be claimed by prescription which owes its origin to, and can only be had by, matter of record; but lapse of time, accompanied by acts done or other circumstances, may warrant the jury in presuming a grant or title by record. Thus, also, though lapse of time does not of itself furnish a conclusive- bar to the title of the sovereign, agreeably to the maxim, nullum tempus oeeurrid regi; yet if the adverse claim could have had a legal commencement, juries are advised or instructed to presume such commencement, after many years of uninterrupted possession or enjoyment. Accordingly royal grants have been thus found by the jury, after an indefinitely long-continued peaceful enjoyment-accompanied by the usual acts of ownership. 1 Green-leaf Ev. § 45. “The principle upon which this doctrine rests is one of general jurisprudence, and is recognized in the Homan law and the codes founded thereon, Best’s Principles of Evidence, § 366, and was, therefore, a feature of the Mexican law at the time of the cession.” The application of these principles to the case at bar does not need many directing words. It is contended by the Government that no juridical possession is shown under the grant to the southern portion of the tract; that there is no grant shown to Sedillo of the northern portion of the tract; that admitting both are shown there is no evidence that the title which Don Diego Borrego received ■ in 1731 was conveyed to Clemente Gutierrez, who was shown to have had the possession claiming title in 1785. To infer all these things, it is argued, is to build presumption on presumption, and carry constructive proof too far. The argument is not formidable. The instances mentioned are of the same kind as those in the cited cases, and the principle of the cases is not limited or satisfied by the presumption" }, { "docid": "21899590", "title": "", "text": "430; United States v. Chaves, 159 U. S. 452, 459. De Castro v. Board of Comm’rs, 322 U. S. 451, 459; Christy v. Pridgeon, 4 Wall. 196. Appleby v. City of New York, 271 U. S. 364, 380; compare Clearfield Trust Co. v. United States, 318 U. S. 363, 366; United States v. Allegheny County, 322 U. S. 174, 183; S. R. A., Inc. v. Minnesota, 327 U. S. 558, 564. Fletcher v. Fuller, 120 U. S. 534, 545, 547; United States v. Chavez, 175 U. S. 509, 520. Ricard v. Williams, 7 Wheat. 59, 109. See Holdsworth, A History of English Law, vol. VII, p. 343, et seq.; 1 Greenleaf, Evidence (12th Ed.), §17. 1 Greenleaf, Evidence (16th Ed.), § 45a: “Thus, also, though lapse of time does not, of itself, furnish a conclusive legal bar to the title of the sovereign, agreeably to the maxim, 'nullum tempus occurrit regi;’ yet, if the adverse claim could have had a legal commencement, juries are instructed or advised to presume such commencement, after many years of uninterrupted adverse possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an indefinitely long-continued peaceable enjoyment, accompanied by the usual acts of ownership. So, after less than forty years’ possession of a tract of land, and proof of a prior order of council for the survey of the lot, and of an actual survey thereof accordingly, it was held that the jury were properly instructed to presume that a patent had been duly issued. In regard, however, to crown or public grants, a longer lapse of time has generally been deemed necessary, in order to justify this presumption, than is considered sufficient to authorize the like presumption in the case of grants from private persons.” 32 Stat. 691, § 12. 1 Greenleaf, Evidence (16th Ed.), § 45a. Fletcher v. Fuller, supra, 551; United States v. Chavez, supra, 464; United States v. Chavez, supra, 520. Fletcher v. Fuller, supra, 552; Whitney v. United States, 167 U. S. 529, 546; Jover v. Insular Government, supra, 633. “OPINION BOOK Attorney General’s Department Pages" }, { "docid": "21899588", "title": "", "text": "actual occupancy where the character of the property does not lend itself to such use. No other private owner claims any rights in Palmyra. From the evidence of title and possession shown in this record, we cannot say that the decrees below are incorrect. Judgment affirmed. Hawaii v. Mankichi, 190 U. S. 197. Hawaii v. Mankichi, 190 U. S. 197, 216. Declaration of Rights, 1839. Act to Organize Executive Departments and Joint Resolution, April 27, 1846, Hawaii, Statute Laws, 1845-46, vol. I, pp. 99, 277. Revised Laws of Hawaii, 1905, p. 1197 et seq. Thurston v. Bishop, 7 Haw. 421, dissent, n. at 454. The domain covered by the term seems to be not only the lands declared to be the private lands of the King by the Act of June 7, 1848, but also other unassigned lands later declared by legislative authority to be Crown Lands. Rev. Laws, Hawaii, 1905, p. 1227; Act of November 14, 1890, Laws, Hawaii, 1890, c. 75; Rev. Laws, Hawaii, 1905, p. 1229. Hawaii, Statute Laws, 1845-46, vol. I, p. 107. Hawaii, Statute Laws, 1847, vol. II, pp. 81-94; Revised Laws, Hawaii, 1905, p. 1164 et seq. Thurston v. Bishop, 7 Haw. 421, 429, 437. “The. Commission was authorized to consider possession of land acquired by oral gift of Kamehameha I., or one of his high chiefs, as sufficient evidence of title to authorize an award therefor to the claimant. This we must consider as the foundation of all titles to land in this Kingdom, except such as come from the King, to any part of his reserved lands, and excepting also the lists of Government and Fort lands reserved. The land in dispute in this case is not one of those specifically reserved by the King, Kamehameha III., to himself and his successors, and not being in the lists of lands specially set apart as Government or Fort lands, must be one of those over which the Land Commission had jurisdiction to award to the claimant.” P.429. Haw. Civil Code, 1859, p. 14 et seq. United States v. Perot, 98 U. S. 428," }, { "docid": "22143601", "title": "", "text": "States and the rights acquired by it . . . find their roots in the same federal sources. ... In absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards.” 318 U. S., at 366-367; United States v. Allegheny County, 322 U. S. 174, 183 (1944); United States v. Standard Oil Co., 332 U. S. 301, 305 (1947); Board of County Comm’rs v. United States, 308 U. S. 343, 349-350 (1939). III The next step in our analysis is to determine whether the 1937 and 1939 land acquisition agreements in issue should be interpreted according to “borrowed” state law— Act 315 of 1940. The availability of this choice was explicitly recognized in Clearfield Trust itself and fully elaborated some years later in United States v. Standard Oil Co., supra. There we acknowledged that “in many situations, and apart from any supposed influence of the Erie decision, rights, interests and legal relations of the United States are determined by application of state law, where Congress has not acted specifically.” 332 U. S., at 308. We went on to observe that whether state law is to be applied is a question “of federal policy, affecting not merely the federal judicial establishment and the groundings of its action, but also the Government’s legal interests and relations, a factor not controlling in the types of cases producing and governed by the Erie ruling. And the answer to be given necessarily is dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law.” Id., at 309-310. See also De Sylva v. Ballentine, 351 U. S. 570, 580 (1956); RFC v. Beaver County, 328 U. S. 204 (1946) ; Board of County Comm’rs v. United States, 308 U. S., at 351-352; Royal Indemnity Co. v. United States, 313 U. S. 289, 296 (1941); United States v. Yazell, 382 U. S. 341, 356-357 (1966); cf. United States v. Mitchell, 403 U. S. 190 (1971). The Government urges" }, { "docid": "22143600", "title": "", "text": "the governing law in an area comprising issues substantially related to an established program of government operation.” Mishkin, 105 U. Pa. L. Rev., at 800. This, then, is what has aptly been described as the “first” of the two holdings of Clearfield Trust Co. v. United States, supra — that the right of the United States to seek legal redress for duly authorized proprietary transactions “is a federal right, so that the courts of the United States may formulate a rule of decision.” Friendly, In Praise of Erie — And of the New Federal Common Law, 39 N. Y. U. L. Rev. 383, 410 (1964). At least this first step of the Clearfield analysis is applicable here. We deal with the interpretation of a land acquisition agreement (a) explicitly authorized, though not precisely governed, by the Migratory Bird Conservation Act and (b) to which the United States itself is a party. Cf. Bank of America v. Parnell, 352 U. S. 29, 33 (1956). As in Clearfield and its progeny, “[t]he duties imposed upon the United States and the rights acquired by it . . . find their roots in the same federal sources. ... In absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards.” 318 U. S., at 366-367; United States v. Allegheny County, 322 U. S. 174, 183 (1944); United States v. Standard Oil Co., 332 U. S. 301, 305 (1947); Board of County Comm’rs v. United States, 308 U. S. 343, 349-350 (1939). III The next step in our analysis is to determine whether the 1937 and 1939 land acquisition agreements in issue should be interpreted according to “borrowed” state law— Act 315 of 1940. The availability of this choice was explicitly recognized in Clearfield Trust itself and fully elaborated some years later in United States v. Standard Oil Co., supra. There we acknowledged that “in many situations, and apart from any supposed influence of the Erie decision, rights, interests and legal relations of the United States are determined by application of" }, { "docid": "22630102", "title": "", "text": "is indeed true that the Court construes waivers of sovereign immunity strictly, that principle of statutory construction is no more than an aid in the task of determining congressional intent. In a close case, it may help the Court choose between two equally plausible constructions. It cannot, however, grant the Court authority to narrow judicially the waiver that Congress intended. United States v. Kubrick, 444 U. S. 111, 118 (1979); Indian Towing Co. v. United States, 350 U. S. 61, 69 (1955). The mere observation that a statute waives sovereign immunity, then, cannot resolve questions of construction. The Court still must consider all indicia of congressional intent. Considering all the evidence, I cannot agree with the Court’s conclusion that Congress intended to subject the States to a statute of limitations that would prevent their assertion of title to lands held in trust for the public. The common law has long accepted the principle “nullum tempus occurrit regi” — neither laches nor statutes of limitations will bar the sovereign. See, e. g., 10 W. Holdsworth, A History of English Law 355 (1938); D. Gibbons, A Treatise on the Law of Limitation and Prescription 62 (1835). The courts of this country accepted the principle from English law. See, e. g., Weber v. Board of Harbor Comm’rs, 18 Wall. 57 (1873); United States v. Kirkpatrick, 9 Wheat. 720, 735 (1824); Iverson & Robinson v. Dubose, 27 Ala. 418, 422 (1855); Stoughton v. Baker, 4 Mass. 522, 528 (1803); see generally J. May, Angell on Limitations 29-30 (5th ed. 1869). As this Court observed: “So complete has been its acceptance that the implied immunity of the domestic ‘sovereign,’ state or national, has been universally deemed to be an exception to local statutes of limitations where the government, state or national, is not expressly included.” Guaranty Trust Co. v. United States, 304 U. S. 126, 133 (1938). In this country, courts adopted the rule, not on the theory that an “impeccable” sovereign could not be guilty of laches, but because of the public policies served by the doctrine. The public interest in preserving public rights" }, { "docid": "21899574", "title": "", "text": "construe that law for themselves. The federal courts cannot be foreclosed by determinations of the Hawaiian law by the Hawaiian courts. They will lean heavily upon the Hawaiian decisions as to the Hawaiian law but they are not bound to follow those decisions where a claimed title to public lands of the United States is involved. The roots of respondents’ claim spring from Hawaiian law. As their claim to Palmyra continued after the United States acquired in 1898 whatever rights Hawaii then had, the validity of respondents’ claim must be judged, also, in the light of the public land law of the United States. The presumption of a lost grant to land has received recognition as an appropriate means to quiet long possession. It recognizes that lapse of time may cure the neglect or failure to secure the proper muniments of title, even though the lost grant may not have been in fact executed. The doctrine first appeared in the field of incorporeal hereditaments but has been extended to realty. The rule applies to claims to land held adversely to the sovereign. The case from this Court most often cited is United States v. Chaves, 159 U. S. 452. In that case, there was evidence of the prior existence of the lost grant. The title of the claimants was upheld but this Court then stated, at p. 464, conformably to Fletcher v. Fuller, supra: “Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure, wherever, by possibility, a right may be acquired in any manner known to the law.” See United States v. Pendell, 185 U. S. 189, 200-201. A few years later, in United States v. Chavez, 175 U. S. 509, the problem of the lost grant again arose. In this case, as to" }, { "docid": "6859212", "title": "", "text": "opinion that the title to land can be acquired and lost only in the manner prescribed by the law of the place where such land is situate.” Clark v. Graham, 6 Wheat. 577, 5 L. Ed. 334; Kerr v. Moon, 9 Wheat. 565, 570, 6 L. Ed. 161; McCormick v. Sullivant, 10 Wheat. 192, 202, 6 L. Ed. 300; Taylor v. Benham, 5 How. 233, 273, 12 L. Ed. 130; McGoon v. Scales, 9 Wall. 23,19 L. Ed. 545; Burbank v. Conrad, 96 U. S. 291, 298, 24 L. Ed. 731; Brine v. Insurance Co., 96 U. S. 627, 639, 24 L. Ed. 858; Schley v. Pullman Car Co., 7 S. Ct. 730, 120 U. S. 575, 580, 30 L. Ed. 789; Langdon v. Sherwood, 8 S. Ct. 429, 124 U. S. 74, 81, 31 L. Ed. 344; DeVaughn v. Hutchinson, 17 S. Ct. 461, 165 U. S. 566, 570, 41 L. Ed. 827; Clarke v. Clarke, 20 S. Ct. 873, 178 U. S. 186, 191, 44 L. Ed. 1028; Olmsted v. Olmsted, 30 S. Ct. 292, 216 U. S. 386, 393, 54 L. Ed. 530, 25 L. R. A. (N. S.) 1292; Munday v. Wisconsin Trust Co., 40 S. Ct. 365, 252 U. S. 499, 503, 64 L. Ed. 684. This is not only the law of the federal courts, but of the state courts as well, and it is our understanding that it is the law of all countries. This court had occasion to apply the rule in Hotel Woodward v. Ford, 258 F. 322, 169 C. C. A. 338. In Wharton on Conflict of Laws (3d Ed.) vol. 2, c. 7, the writer states that, under the Homan law, the English common law, and that of the United States, real estate in all jurisdictions and by an uninterrupted current of authority is held subject to the lex rei sit®. A “lease,” strictly speaking, as Blackstone defined it, “is a conveyance of any lands or tenements (usually in consideration of rent or other annual recompense) made for. life, for years, or at will, but always for a less" }, { "docid": "21899575", "title": "", "text": "to land held adversely to the sovereign. The case from this Court most often cited is United States v. Chaves, 159 U. S. 452. In that case, there was evidence of the prior existence of the lost grant. The title of the claimants was upheld but this Court then stated, at p. 464, conformably to Fletcher v. Fuller, supra: “Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure, wherever, by possibility, a right may be acquired in any manner known to the law.” See United States v. Pendell, 185 U. S. 189, 200-201. A few years later, in United States v. Chavez, 175 U. S. 509, the problem of the lost grant again arose. In this case, as to one tract, case No. 38 at 516, the existence of the grant to Joaquin Sedillo was not shown except by a statement of January 11, 1734, that the tract conveyed “was acquired by his [affiant’s] father in part by grant in the name of His Majesty [The King of Spain] . . .” P. 514. In referring to the recognition of title in the private owners, this Court said, at 520: “Succeeding to the power and obligations of those Governments, must the United States do so? This is insisted by their counsel, and yet they have felt and expressed the equities which arise from the circumstances of the case. Whence arise those equities? That which establishes them may establish title. Upon a long and uninterrupted possession, the law bases presumptions as sufficient for legal judgment, in the absence of rebutting circumstances, as formal instruments, or records, or articulate testimony. Not that formal instruments or records are unnecessary, but it will be presumed that they once existed and have been lost. The inquiry then recurs, do" }, { "docid": "23601463", "title": "", "text": "indeed, contend that the Court of Private Land Claims and this court have no power to presume a grant upon proof of long-continued possession only; that their power is confined to confirming grants lawfully and regularly derived from Spain and Mexico. It is scarcely necessary for us to consider such a question, because, as we have seen, there is ample evidence from which to find that these settlers were put in juridical possession' under a grant from the governor of New Mexico, who, under the laws then in force, had authority to make the grant. However, we do not wish to be understood as undervaluing the fact of a possession so long and uninterrupted as disclosed in this case. Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure, wherever, by possibility, a right may be acquired in any manner known to the law. 1 Greenleaf Ev. 12th ed. § 17; Ricard v. Williams, 7 Wheat. 59, 109; Coolidge v. Learned, 8 Pick. 503. Nothing, it is true, can be claimed.by prescription which owes its origin to, and can only be had by, matter of record; but lapse, of time accompanied by acts done, or other circumstances, may warrant the jury in presuming a grant or title by record. Thus, also, though lapse of time does not, of itself, furnish a conclusive bar to the title of the sovereign, agreeably to the maxim, nullum tempus occurrit regi; yet, if the adverse claim .could have a legal commencement, juries are advised or instructed to presume such commencement, after many years of uninterrupted possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an indefinitely long-continued peaceful enjoyment, accompanied by the usual acts of ownership. 1 Greenl. Ev. § 45. The principle upon" }, { "docid": "22623714", "title": "", "text": "219. It further held that while such an adjudication is not res judicata against the United States because it cannot be made a party to the suit, the courts have jurisdiction to resolve the controversy between those who claim possession. And it concluded that an agent or officer of the United States who acts beyond his authority is answerable for his actions. And see Philadelphia Co. v. Stimson, 223 U. S. 605, 619-620; Sloan Shipyards Corp. v. United States Fleet Corp., 258 U. S. 549, 567. Where the right to possession or enjoyment of property under general law is in issue, and the defendants claim as officers or agents' of the sovereign, the rule of United States v. Lee, supra, has been repeatedly approved. Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446, 452; Tindal v. Wesley, 167 U. S. 204; Smith v. Reeves, 178 U. S. 436, 439; Scranton v. Wheeler, 179 U. S. 141, 152-153; Philadelphia Co. v. Stimson, supra, pp. 619-620; Goltra v. Weeks, 271 U. S. 536, 545; Ickes v. Fox, 300 U. S. 82, 96; Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 50-51. That rule is applicable here although we assume that record title to the shares is in the Commission. In United States v. Lee, supra, record title of the land was in the United States and its officers were in possession. The force of the decree in that case was to grant possession to the private claimant. Though the judgment was not res judicata against the United States, p. 222, it settled as between the parties the controversy over possession. Precisely the same will be true here, if we assume the allegations of the complaint are proved. For if we view the case in its posture before the District Court, petitioners, being members of the Commission, were in position to restore possession of the shares which they unlawfully held. We do not trace the principle of United States v. Lee, supra, in its various ramifications. Cases on which petitioners rely are distinguishable. This is not an indirect" }, { "docid": "17799214", "title": "", "text": "not guilty of inexcusable delay in making its well-pumping claim, and that Colorado had not been prejudiced by Kansas’ failure to press its claim earlier. Id., at 170. Colorado has excepted to this determination. Colorado argues that the equitable doctrine of laches should bar Kansas’ claim for relief. See Colorado’s Exceptions to Special Master’s Report (Colorado’s Exceptions) 24-64. We overrule Colorado’s exception. The defense of laches “requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.” Costello v. United States, 365 U. S. 265, 282 (1961); see also Black’s Law Dictionary 875 (6th ed. 1990) (“‘Doctrine of laches,’ is based upon maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as bar in court of equity”). This Court has yet to decide whether the doctrine of laches applies in a case involving the enforcement of an interstate compact. Cf. Illinois v. Kentucky, 500 U. S. 380, 388 (1991) (in the context of an interstate boundary dispute, “the laches defense is generally inapplicable against a State”); Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U. S. 273, 294 (1983) (O’Connor, J., dissenting) (“The common law has long accepted the principle ‘nullum tempus occurrit regi’ — neither laches nor statutes of limitations will bar the sovereign”); Colorado v. Kansas, supra, at 394 (In the context of a suit seeking an equitable apportionment of river flows, facts demonstrating a delay in filing a complaint “might well preclude the award of the relief [requested]. But, in any event, they gravely add to the burden [the plaintiff] would otherwise bear”)- We need not, however, foreclose the applicability of laches in such cases, because we conclude that Colorado has failed to prove an element necessary to the recognition of that defense. See Costello, supra, at 282. Colorado argues that Kansas knew or should" }, { "docid": "21899589", "title": "", "text": "p. 107. Hawaii, Statute Laws, 1847, vol. II, pp. 81-94; Revised Laws, Hawaii, 1905, p. 1164 et seq. Thurston v. Bishop, 7 Haw. 421, 429, 437. “The. Commission was authorized to consider possession of land acquired by oral gift of Kamehameha I., or one of his high chiefs, as sufficient evidence of title to authorize an award therefor to the claimant. This we must consider as the foundation of all titles to land in this Kingdom, except such as come from the King, to any part of his reserved lands, and excepting also the lists of Government and Fort lands reserved. The land in dispute in this case is not one of those specifically reserved by the King, Kamehameha III., to himself and his successors, and not being in the lists of lands specially set apart as Government or Fort lands, must be one of those over which the Land Commission had jurisdiction to award to the claimant.” P.429. Haw. Civil Code, 1859, p. 14 et seq. United States v. Perot, 98 U. S. 428, 430; United States v. Chaves, 159 U. S. 452, 459. De Castro v. Board of Comm’rs, 322 U. S. 451, 459; Christy v. Pridgeon, 4 Wall. 196. Appleby v. City of New York, 271 U. S. 364, 380; compare Clearfield Trust Co. v. United States, 318 U. S. 363, 366; United States v. Allegheny County, 322 U. S. 174, 183; S. R. A., Inc. v. Minnesota, 327 U. S. 558, 564. Fletcher v. Fuller, 120 U. S. 534, 545, 547; United States v. Chavez, 175 U. S. 509, 520. Ricard v. Williams, 7 Wheat. 59, 109. See Holdsworth, A History of English Law, vol. VII, p. 343, et seq.; 1 Greenleaf, Evidence (12th Ed.), §17. 1 Greenleaf, Evidence (16th Ed.), § 45a: “Thus, also, though lapse of time does not, of itself, furnish a conclusive legal bar to the title of the sovereign, agreeably to the maxim, 'nullum tempus occurrit regi;’ yet, if the adverse claim could have had a legal commencement, juries are instructed or advised to presume such commencement, after many years of" }, { "docid": "21899591", "title": "", "text": "uninterrupted adverse possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an indefinitely long-continued peaceable enjoyment, accompanied by the usual acts of ownership. So, after less than forty years’ possession of a tract of land, and proof of a prior order of council for the survey of the lot, and of an actual survey thereof accordingly, it was held that the jury were properly instructed to presume that a patent had been duly issued. In regard, however, to crown or public grants, a longer lapse of time has generally been deemed necessary, in order to justify this presumption, than is considered sufficient to authorize the like presumption in the case of grants from private persons.” 32 Stat. 691, § 12. 1 Greenleaf, Evidence (16th Ed.), § 45a. Fletcher v. Fuller, supra, 551; United States v. Chavez, supra, 464; United States v. Chavez, supra, 520. Fletcher v. Fuller, supra, 552; Whitney v. United States, 167 U. S. 529, 546; Jover v. Insular Government, supra, 633. “OPINION BOOK Attorney General’s Department Pages 598-600 Opinion No. 18 Honolulu, T. H., Feb. 11,1905 To His Excellency Geo. R. Carter, Governor of the Territory of Hawaii, Honolulu, T. H. Sra: In answer to your request of December 15th, 1904, for an opinion as to the jurisdiction of the Territory of Hawaii over the various small guano islands to the north-west of Kauai, I would reply as follows: After a careful investigation of the records in the office of the Secretary of the Territory, formerly the Foreign Office, and from other sources of information, I find that the authority of the Territory of Hawaii over these islands is as follows: It appears in the report of J. A. King, Minister of the Interior, dated the 2nd day of June, 1894, to Sanford B. Dole, President of the Republic of Hawaii, that formal possession was taken of Necker Island by the said J. A. King, representing the Republic of Hawaii, on May 22, 1894; it also appears by that report that the government of the Hawaiian Islands had sent Captain John Paty" }, { "docid": "22415866", "title": "", "text": "Stock Corp. v. Minnesota, 301 U. S. 234, 239-240; Schuylkill Trust Co. v. Pennsylvania, 302 U. S. 506, 514-516. Green v. Van Buskirk, 5 Wall. 307; 7 Wall. 139; Pennoyer v. Neff, 95 U. S. 714; Arndt v. Griggs, 134 U. S. 316; Fall v. Eastin, 215 U. S. 1; Olmsted v. Olmsted, 216 U. S. 386; United States v. Guaranty Trust Co., 293 U. S. 340, 345-346; Paddell v. City of New York, 211 U. S. 446; St. Louis v. Ferry Co., 11 Wall. 423, 430; Frick v. Pennsylvania, 268 U. S. 473; see Story, Conflict of Laws (8th ed.), §§ 550, 551; Dicey, Conflict of Laws (5th ed.), pp. 418, et seq., 583 et seq., 606 et seq.; 1 Beale, Conflict of Laws, § 48.1 et seq.; American Law Institute, Restatement of Conflict of Laws,’ §§ 48, 49 ; 2 Cooley, Taxation (4th ed.), §§ 447, 451. But there are many legal interests other than conventional ownership which may be created with respect to land of such a character that they may be constitutionally subjected to taxation in states other than that where the land is situated. No one has doubted the constitutional power of a state to tax its domiciled residents on their shares of stock in a foreign corporation Whose only prqperty is real estate locáted elsewhere, Darnell v. Indiana, 226 U. S. 390; Hawley v. Malden, 232 U. S. 1; cf. Kidd v. Alabama, 188 U. S. 730; Carry v. Baltimore, 196 U. S. 466; Cream of Wheat Co. v. County of Grand Forks, 253 U. S. 325, 329; Schuylkill Trust Co. v. Pennsylvania, 302 U. S. 506, 514-516, or to tax a valuable contract for the purchase of land or chattels located in another state, see Citizens National Bank v. Durr, 257 U. S. 99, 108; cf. Gish v. Shaver, 140 Ky. 647, 650; 131 S. W. 515; Golden v. Munsinger, 91 Kan. 820, 823; 139 P. 379; ' Marquette v. Michigan Iron & Land Co., 132 Mich. 130; 92 N. W. 934, or to tax a mortgage of real estate located without the" }, { "docid": "22415865", "title": "", "text": "cannot define the constitutional guaranty in terms of a fiction so unrelated to reality without creating as many tax injustices as we would avoid and without exercising a power to remake constitutional provisions which the Constitution has not given to the courts. See Bristol v. Washington County, supra, 145; Kidd v. Alabama, 188 U. S. 730, 732, quoted with approval in Hawley v. Malden, supra, 13; Bullen v. Wisconsin, supra, 630; Fidelity & Colombia Trust Co. v. Louisville, supra, 58; Cream of Wheat Co. v. Grand Forks, supra, 330. So far as the decree of the Supreme Court of Tennessee denies the power of Alabama to tax, it is Reversed. See, in the case of income taxation, Lawrence v. State Tax Comm’n, 286 U. S. 276; New York ex rel. Cohn v. Graves, 300 U. S. 308; Guaranty Trust Co. v. Virginia, 305 U. S. 19; cf. Senior v. Braden, 295 U. S. 422, 431-432. And in the case of taxation of shares of stock, see Corry v. Baltimore, 196 U. S. 466; First Bank Stock Corp. v. Minnesota, 301 U. S. 234, 239-240; Schuylkill Trust Co. v. Pennsylvania, 302 U. S. 506, 514-516. Green v. Van Buskirk, 5 Wall. 307; 7 Wall. 139; Pennoyer v. Neff, 95 U. S. 714; Arndt v. Griggs, 134 U. S. 316; Fall v. Eastin, 215 U. S. 1; Olmsted v. Olmsted, 216 U. S. 386; United States v. Guaranty Trust Co., 293 U. S. 340, 345-346; Paddell v. City of New York, 211 U. S. 446; St. Louis v. Ferry Co., 11 Wall. 423, 430; Frick v. Pennsylvania, 268 U. S. 473; see Story, Conflict of Laws (8th ed.), §§ 550, 551; Dicey, Conflict of Laws (5th ed.), pp. 418, et seq., 583 et seq., 606 et seq.; 1 Beale, Conflict of Laws, § 48.1 et seq.; American Law Institute, Restatement of Conflict of Laws,’ §§ 48, 49 ; 2 Cooley, Taxation (4th ed.), §§ 447, 451. But there are many legal interests other than conventional ownership which may be created with respect to land of such a character that they may be" } ]

[ { "docid": "10234535", "title": "", "text": "1238 (8th Cir.1990). On the other hand, the Federal Rules of CM Procedure have authorized for nearly 60 years “motions for summary judgment upon proper showings of the lack of a genuine, triable issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). Thus, “summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’” Wabun-Inini, 900 F.2d at 1238 (quoting Celotex, 477 U.S. at 327, 106 S.Ct. at 2555); Hartnagel v. Norman, 953 F.2d 394, 396 (8th Cir.1992). The standard for granting summary judgment is well established. Rule 56 of the Federal Rules of CM Procedure states in pertinent part: Rule 56. Summary Judgment (b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon____ The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(b)-(c) (emphasis added); see also Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Reliance Ins. Co. v. Shenandoah S., Inc., 81 F.3d 789, 791 (8th Cir.1996); Beyerbach v. Sears, 49 F.3d 1324, 1325 (8th Cir.1995); Munz v. Michael, 28 F.3d 795, 798 (8th Cir.1994); Roth v. U.S. S. Great Lakes Fleet, Inc., 25 F.3d 707, 708 (8th Cir.1994); Cole v. Bone, 993 F.2d 1328, 1331 (8th Cir.1993); Woodsmith Publ’g Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir.1990); Wabun-Inini, 900 F.2d at 1238 (citing Fed.R.Civ.P. 56(c)). A court considering a motion for summary judgment must view all the facts in the light most" } ]

[ { "docid": "3839730", "title": "", "text": "to lift more than ten pounds, to stand for extended periods of time, and that her condition was permanent. On July 30, 1997, both Mr. Bushman and Mr. Howe scheduled a meeting with Wheaton, the substance of which is in dispute. Following the meeting, Wheaton was terminated by “Messenger Printing” at the behest of Bob Howe and Larry Bushman. II. STANDARDS FOR SUMMARY JUDGMENT This court has considered in some detail the standards applicable to motions for summary judgment pursuant to fed. R. Civ. P. 56 in a number of recent decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-32 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997); Security State Bank v. Firstar Bank Milwaukee, N.A, 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, ansivers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. fed. R. Cw. P. 56(b) & (c) (emphasis added). Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77" }, { "docid": "17962505", "title": "", "text": "who were in attendance at that meeting. When Michael Bush noticed that the document had not been signed by everyone in attendance, he had asked those managers who had not signed the memorandum to do so. II. LEGAL ANALYSIS A. Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Carp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). The essentials of these standards for present purposes are as follows. 1. Requirements of Rule 56 Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a)-(c) (emphasis added). Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether" }, { "docid": "10848327", "title": "", "text": "Sioux City, Iowa, who argued the motions, and by George F. Madsen of Marks, Madsen & Hirschbaeh, also of Sioux City, Iowa. Defendant Cummins South was represented by Christopher L. Bruns of Elderkin & Pirnie, P.L.C., in Cedar Rapids, Iowa, who argued the motions, and by Jay Frank Castle of Holt, Ney, Zatcoff & Wasserman, LLP, of Atlanta, Georgia. Defendant Mayer did not appear for the oral arguments. Following the oral arguments, the court received from the parties supplemental deposition transcripts and citations to pertinent portions of those transcripts. II. LEGAL ANALYSIS A. Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Fed. R.CivP. 56 in a number of recent decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stihvill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (ND.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered" }, { "docid": "12220538", "title": "", "text": "day from and after August 1, 2002. While the lease payments reduce the stipulated loss number in the lease schedule, the reduction is not equal to the amount of the lease payments. The stipulated liquidated loss number was billed by First Union but the billing was rescinded due to an extension of the lease. There has been no effort by First Union, since its rescission of the billing, to collect any stipulated damages amount. IC & E has incurred approximately $41,000 in costs in lease payments on locomotive FURX 7206 since the accident. On August 28, 2002, First Union obtained appraisals and average values of locomotives, including the model SD40-2. The values from appraisers in the industry ranged from $75,000 to $180,000. Defense’s expert has opined that the FURX 7206 could be replaced with a locomotive of like condition and vintage for between $129,000 and $149,000. The defense expert also is of the opinion that FURX 7206 has a salvage value of $46,000. Since the time of the accident, the locomotive market has made a substantial upturn. Locomotives similar to FURX 7206 are now rent-. ing for $115 a day from First Union. There is a high demand for SD40-2 locomotives at this time, and First Union is not currently storing any SD40-2 locomotives. IC & E “cherry picked” the locomotives it leased from First Union. They were considered premium units. The lease agreement required IC & E to obtain casualty insurance relating to the leased locomo tives. IC & E obtained insurance with a $1,000,000 retention. II. LEGAL ANALYSIS A. Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035" }, { "docid": "6420332", "title": "", "text": "parties’ various summary judgment motions. III. STANDARDS FOR SUMMARY JUDGMENT This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). The essentials of these standards for present purposes are as follows. A. Requirements Of Rule 56 Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P." }, { "docid": "3283513", "title": "", "text": "Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Fed. R. Civ. P. 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Summary Judgment Rule 56. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(b) & (c) (emphasis added). Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). An issue of material fact is genuine if it has a real basis in the record. Hartnagel v. Norman, 953 F.2d 394 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith" }, { "docid": "10332319", "title": "", "text": "also property of the State of Iowa.” The Woodbury County Employee Handbook contains a provision that provides that employees convicted of committing criminal acts involving moral turpitude are subject to discipline. At the time of her termination, Walsted had worked for Woodbury County for more than eight years, where she had performed her job duties satisfactorily and demonstrated good work attitude and enthusiasm for her position. Since her termination, Walsted has been employed as a motel housekeeper. 113 FEDERAL SUPPLEMENT, 2d SERIES II. STANDARDS FOR SUMMARY JUDGMENT This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Fed.R.Civ.P. 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff’d in pertinent part, 202 F.3d 1035 (8th Cir.2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff’d, 205 F.3d 1347 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings" }, { "docid": "17962504", "title": "", "text": "Tim Smith and Jeff Eivins were Smith’s co-workers. Neither Tim Smith nor Eiv-ins ever supervised Smith. Eivins and Smith were personal friends. Tim Smith never sexually harassed Smith. Eivins told Smith that she had a “nice butt” on several occasions. Smith never complained to Eivins about his statement nor did she tell him she was offended by the statement. On another occasion Eivins told Smith on his birthday that: “Hey, it’s my birthday today, are you going to be nice to me?” and “What are you going to give me?” Smith never reported Eivins’s statements to management. Eivins and Tim Smith remain employed by Eaton. After Smith was fired, she requested a copy of her employment file. A copy was provided to her but Eaton did not provide Smith with documents that were not contained in her personnel file, such as documents stored in the file of her supervisors Tom Swisher and Jodi Braun. The copy of the May 21, 1999, memorandum contained in Smith’s file did not have the signatures of all the persons who were in attendance at that meeting. When Michael Bush noticed that the document had not been signed by everyone in attendance, he had asked those managers who had not signed the memorandum to do so. II. LEGAL ANALYSIS A. Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Carp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee," }, { "docid": "6420331", "title": "", "text": "900 F.2d 1234, 1238 (8th Cir.1990) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), by identifying genuine, triable issues of fact. See Celotex, 477 U.S. at 327, 106 S.Ct. 2548. If a summary judgment ruling is not itself “fixed in stone,” it does not seem appropriate to bar a party from supplementing or amending the summary judgment record prior to the court’s ruling— except, perhaps, as a sanction for dilatory conduct, which the court finds is not present here — and to do so might preclude the court from determining what triable issues actually remain on the full record that would be submitted at trial. Therefore, Helm’s motion to strike IANR’s amended response to Helm’s statement of material facts in support of Helm’s first motion for summary judgment will be denied and IANR’s request for leave to file its amended response will be granted. Having resolved the preliminary issues concerning what portions of the record the court may consider, the court turns to the merits of the parties’ various summary judgment motions. III. STANDARDS FOR SUMMARY JUDGMENT This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). The essentials of these standards for present purposes are as follows. A. Requirements Of Rule" }, { "docid": "19737092", "title": "", "text": "Nicholas indicating Kopple’s intention with regard to the letter of intent. Kopple subsequently proposed to waive the representations and warranties and to close the stock purchase in accordance with the terms and conditions of the letter of intent. Schick rejected Kopple’s proposal. II. LEGAL ANALYSIS A. Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c)Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file," }, { "docid": "3750463", "title": "", "text": "summary judgment “where the district court’s order makes clear that the judge ruled only on the motion to dismiss.” Skyberg v. United Food and Commercial Workers Int’l Union, AFL-CIO, 5 F.3d 297, 302 n. 2 (8th Cir.1993). Where the district court has made the posture of its disposition dear, the appellate court will “treat the case as being in that posture.” Id. The court concludes that it is not necessary to “convert” this portion of Autor matic’s motion to dismiss into a motion for summary judgment, because Automatic has already couched its motion in the alternative one for summary judgment pursuant to Rule 56. Thus, Dethmers had notice from time the motion was filed that the court being asked to adjudicate the matters presented according to summary judgment standards, and Dethmers has responded in by arguing for denial of the motion according to those standards. In these circumstances, it is appropriate for the court to treat the motion, in the first instance, as one for summary judgment, Fed.R.Civ.P. 12(b)(6) (where “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56”), and the court will proceed accordingly. See Skyberg, 5 F.3d at 302 n.2 (where the district court has made the posture of its disposition clear, the appellate court will “treat the case as being in that posture”). This court has considered in some detail the Eighth Circuit standards applicable to motions for summary judgment pursuant to Fed.R.Civ.P. 56 in a number of recent decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. #1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997)." }, { "docid": "12220539", "title": "", "text": "substantial upturn. Locomotives similar to FURX 7206 are now rent-. ing for $115 a day from First Union. There is a high demand for SD40-2 locomotives at this time, and First Union is not currently storing any SD40-2 locomotives. IC & E “cherry picked” the locomotives it leased from First Union. They were considered premium units. The lease agreement required IC & E to obtain casualty insurance relating to the leased locomo tives. IC & E obtained insurance with a $1,000,000 retention. II. LEGAL ANALYSIS A. Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may," }, { "docid": "3750464", "title": "", "text": "presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56”), and the court will proceed accordingly. See Skyberg, 5 F.3d at 302 n.2 (where the district court has made the posture of its disposition clear, the appellate court will “treat the case as being in that posture”). This court has considered in some detail the Eighth Circuit standards applicable to motions for summary judgment pursuant to Fed.R.Civ.P. 56 in a number of recent decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. #1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a motter of law. Fed.R.Civ.P. 56(b), (c) (emphasis added). Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). An issue of material" }, { "docid": "19737091", "title": "", "text": "salesperson and broker in the state of Iowa. Kopple and Schick never spoke to one another regarding the transaction. Schoneman never explained the legality of the letter of intent to Schick nor did he explain to him that Kopple might try to enforce the document. Schick did not have his attorney review the letter of intent because he did not want to incur the legal fees for such a review when he believed that the document was not a binding agreement. Schick did not sign earlier versions of the letter of intent because the terms of those drafts were unacceptable to him. After the letter of intent was executed, Kopple asked Duffy to draft a formal stock acquisition agreement. Kopple was not certain whether there was furniture or other items owned by Schick Farms that would be excluded from the sale. On November 17, 2004, Kopple’s attorney, Duffy, forwarded a letter to Schick’s legal counsel, Nicholas, stating that the letter of intent was a binding document. On December 20, 2004, Duffy forwarded another letter to Nicholas indicating Kopple’s intention with regard to the letter of intent. Kopple subsequently proposed to waive the representations and warranties and to close the stock purchase in accordance with the terms and conditions of the letter of intent. Schick rejected Kopple’s proposal. II. LEGAL ANALYSIS A. Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v." }, { "docid": "3839729", "title": "", "text": "full-time basis. The precise reason for her transfer is disputed. Mr. Howe and Mr. Bushman indicated that Wheaton would receive the same salary, perform the same tasks that she had performed previously, and that her lifting and standing restrictions would be respected. Upon beginning her work in the bindery, Wheaton contacted Iowa Job Service to obtain advice concerning the actions taken by her employer. She was told that her employer could not transfer her to a position that it knew she was physically incapable of performing. She continued to work in the bindery and continued to receive treatments from her chiropractor. Shortly thereafter, Wheaton asked Bob Howe for written documentation acknowledging that the company knew of her back limitations. Mr. Howe discussed this issue with Mr. Bushman and decided that the company would not provide her with any such documentation. Rather, they requested Wheaton to provide them with two notes from her doctors to verify her condition. Wheaton complied and provided “Messenger Printing” with two doctors slips that stated she was limited in her ability to lift more than ten pounds, to stand for extended periods of time, and that her condition was permanent. On July 30, 1997, both Mr. Bushman and Mr. Howe scheduled a meeting with Wheaton, the substance of which is in dispute. Following the meeting, Wheaton was terminated by “Messenger Printing” at the behest of Bob Howe and Larry Bushman. II. STANDARDS FOR SUMMARY JUDGMENT This court has considered in some detail the standards applicable to motions for summary judgment pursuant to fed. R. Civ. P. 56 in a number of recent decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-32 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997); Security State Bank v. Firstar Bank Milwaukee, N.A, 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp." }, { "docid": "3283512", "title": "", "text": "the officer a chance to see if police work is right for the officer, Byrne said. “And so it’s not an unusual thing to find people who just don’t meet up,” Byrne said. Byrne has not publicly detailed what he objected to about the relationship between Peters and Mercer other than to say any off-duty relationship that “adversely affects the workplace has to be addressed.” Defendants’ Attachments To Statement Of Undisputed Material Facts, Deposition Exhibit 1. By letter from her counsel, Mercer informed Chief Byrne that she believed that certain of the statements attributed to him in the newspaper article were untrue and defamatory and she demanded a retraction of those statements. Plaintiffs Reply to Statement Of Undisputed Material Facts And Statement Of Additional Facts, Exhibit 3, p. 1. However, Mercer has not received any response to that letter. Following her discharge from the Cedar Rapids Police Department, Mercer was unable to find employment as a police officer with any other law enforcement agency until some time in May of 2000. II. LEGAL ANALYSIS A. Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Fed. R. Civ. P. 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Summary Judgment Rule 56. (b) For Defending Party. A party against whom a claim ..." }, { "docid": "21642335", "title": "", "text": "applicable to motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedara6pids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a)-(c) (emphasis added). Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh" }, { "docid": "12220540", "title": "", "text": "(8th Cir.2000), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c)Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a)-(c) (emphasis added). Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). An issue of material fact is genuine if it has a real basis in the record. Hartnagel v. Norman, 953 F.2d 394 (8th Cir.1992) (citing Matsushita Elec. Indus. o. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106" }, { "docid": "21642334", "title": "", "text": "Action, Pillsbury’s reference to “damage to Plaintiffs property” in paragraph 18 of the First Amended Complaint relates entirely and solely to the $24,821.40 in expenses incurred by Pillsbury to have consultants inspect the site of the explosion and advise Pillsbury about the explosion’s impact on Pillsbury’s business. Pillsbury is seeking the recovery of these consulting expenses in the Pillsbury Action. Pillsbury, however, has not sustained any loss of use of its tangible property as a result of the explosion. Pillsbury, therefore, is not seeking damages in the Pillsbury Action for physical injury to or loss of use of its tangible property. Defendants’s App. at 173. These allegations are factual in nature and are relevant to the dispute before the court. Jensen asserts that these allegations are based on his personal knowledge. Additionally, from the materials contained in the affidavit, Jensen is competent to testify regarding the materials contained in his affidavit. Therefore, the court denies Wells’s motion to strike Jensen’s affidavit. B. Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedara6pids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover" }, { "docid": "10332318", "title": "", "text": "The surveillance video tape showed Walsted removing automobile validation stickers on December 10, 1997, and again on December 12, 1997. On December 17, 1997, Deputy Kjos arrested Walsted for the theft of the automobile validation stickers. After her arrest, Walsted was interviewed by Deputy Kjos. During this interview, Walsted admitted that she pulled stickers off the desk area where she worked, and would place the stickers on paper or boxes that were in the garbage. Walsted told Deputy Kjos that when she was bored at work she practiced wrapping boxes and used the stickers as decorations to seal packages that she made. Walsted stated that she did not take the stickers to sell to others, for profit or for personal gain. Notwithstanding, Walsted was subsequently charged with Theft in the Fifth degree. On July 13, 1998, a finding of guilt was entered against Walsted. On December 17, 1997, Elgert gave Walsted written notice of her employment termination. Elgert wrote that Walsted’s employment was being terminated “for stealing property within the Motor Vehicle Department which is also property of the State of Iowa.” The Woodbury County Employee Handbook contains a provision that provides that employees convicted of committing criminal acts involving moral turpitude are subject to discipline. At the time of her termination, Walsted had worked for Woodbury County for more than eight years, where she had performed her job duties satisfactorily and demonstrated good work attitude and enthusiasm for her position. Since her termination, Walsted has been employed as a motel housekeeper. 113 FEDERAL SUPPLEMENT, 2d SERIES II. STANDARDS FOR SUMMARY JUDGMENT This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Fed.R.Civ.P. 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff’d in pertinent part, 202 F.3d 1035 (8th Cir.2000); Tralon Corp. v. Cedarapids, Inc.," } ]

[ { "docid": "5627904", "title": "", "text": "Harbor, the state’s actions in Gould could only be understood as an “attempt to compel conformity with the NLRA” that was “unrelated to the employer’s performance of contractual obligations to the State.” Boston Harbor, 113 S.Ct. at 1197. Following the logic of Gould, courts have found preemption when government entities seek to advance general societal goals rather than narrow proprietary interests through the use of their contracting power. Thus attempts by government entities to punish labor and benefits practices they disfavor by withholding contract work have been found preempted by the NLRA and ERISA. See Chamber of Commerce of United States v. Reich, 74 F.3d 1322, 1339 (D.C.Cir.1996) (executive order that barred federal government from contracting with companies that permanently replaced striking workers was preempted by the NLRA); Air Transport Association of America v. City and County of San Francisco, 992 F.Supp. 1149, 1179 (N.D.Ca.1998) (city ordinance barring contracts with employers that did not offer domestic partner benefits to its entire workforce was preempted by ERISA — city admitted that combating discrimination was ordinance’s primary goal and its terms reached well beyond interaction with the city); Van-Go Transport Co., Inc. v. New York City Board of Education, 53 F.Supp.2d 278, 288 (E.D.N.Y.) (policy of refusing to conditionally certify replacement workers that was applied to all of department’s student transport contracts was preempted under NLRA). See also Keystone Chapter Associated Builders and Contractors, Inc. v. Foley, 37 F.3d 945, 955 n. 15 (3d Cir.1994) (noting in dicta that proprietary exception could not save minimum wage rule for state contracts since private parties would not ordinarily embrace a policy that increased the cost of contracting without regard to particular circumstances). Most government contracting decisions do not constitute concealed attempts to regulate, however. In order to function, government entities must have some dealings with the market. While the leverage a state can exert through its spending power and the absence of a true profit motive to restrain government action may create a temptation to take advantage of these interactions to pursue policy goals, the presence of the state in the market cannot automatically" } ]

[ { "docid": "20734848", "title": "", "text": "interests of the BCTC and its affiliates, which were politically aligned with City officials’ interests. At a minimum, BIECA argues, the dispute over the City’s motive is an issue of material fact that rendered dismissal inappropriate. This argument misapprehends both the means for determining governmental purpose and the bounds of the market exception itself. First, when a court assesses whether a governmental policy has a regulatory purpose, it looks primarily to the objective purpose clear on the face of the enactment, not to allegations about individual officials’ motivations in adopting the policy. We will not search for an impermissible motive where a permissible purpose is apparent, because “[fjederal preemption doctrine evaluates what legislation does, not why legislators voted for it or what political coalition led to its enactment.” N. III. Chapter of Associated Builders & Contractors, Inc. v. Bavin, 431 F.3d 1004, 1007 (7th Cir.2005). This principle is true across many fields of substantive law. See, e.g., Mueller v. Allen, 463 U.S. 388, 394-95, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983) (noting that for Establishment Clause analysis, the Court is “reluctan[t] to attribute unconstitutional motives to the States, particularly when a plausible secular purpose for the state’s program may be discerned from the face of the statute”). Our reluctance is motivated in no small part by separation of powers concerns: “Judicial inquiries into legislative or executive motivation represent a substantial intrusion into the workings of other branches of government. Placing a decisionmaker on the stand is therefore usually to be avoided.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (internal quotation marks and citations omitted). Other circuits have expressed reluctance to examine official motives in the PLA context. See Colfax Corp. v. Ill. State Toll Highway Auth., 79 F.3d 631, 635 (7th Cir.1996) (declining to “go behind the contract to determine whether the ... real, but secret motive was to regulate labor”); Johnson v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1026-27 (9th Cir.2010). Moreover, it is difficult to discern officials’ motives given the complex workings of" }, { "docid": "21157994", "title": "", "text": "at hand, or seek business from purchasers whose perceived needs do not include a project labor agreement. In the absence of any express or implied indication by Congress that a State may not manage its own property when it pursues its purely proprietary interests, and where analogous private conduct would be permitted, this Court will not infer such a restriction. Id. at 231-32, 113 S.Ct. 1190. The Third Circuit, in Hotel Employees & Restaurant Employees Union v. Sage Hospitality Resources, LLC, 390 F.3d 206 (3d Cir.2004) (“Sage”), expanded on the above principle and articulated a two-step test for determining whether a government’s condition of funding constitutes market participation that falls within the Boston Harbor exception to preemption review: First, does the challenged funding condition service to advance or preserve the state’s proprietary interest in a project or transaction, as an investor, owner, or financier? Second, is the scope of the funding condition “specifically tailored” to the propriétary interest? ... If a condition of procurement satisfies these two steps, then it reflects the government’s action as a market participant and escapes preemption review. But if the funding condition does not serve, or sweeps more broadly than a government agency’s proprietary economic interest, it must submit to review under [in this case] labor law preemption standards. Id. at 216 (citation omitted). I acknowledge that the First Circuit’s analysis in Quincy is on all fours with the facts of record, as far as it goes. The Court in Quincy, however, did not address either the market participation theory (because the defendant in Quincy failed to raise it below, see 759 F.3d at 131) or the second prong of the Michigan DOL preemption test, that is, whether the mandatory language at issue fell “within the area that Congress intended ERISA to control exclusively,” 543 F.3d at 281. With respect to the former, under Sage’s two-step test, there can be no dispute that the Route 9 Library Project is funded by NCC; therefore, NCC has a proprietary interest in the project. As to the “specifically tailored” requirement, I agree with the reasoning in Lott Constructors," }, { "docid": "5425667", "title": "", "text": "on Olympic’s operation of the Seattle Lateral is consistent with and supported by our prec edent in Shell Oil. C Although the PSA expressly preempts Seattle’s attempted safety regulation of the Seattle Lateral, the City may still contractually require that Olympic perform safety tests of the pipeline if, in entering into the Franchise Agreement, the City acted as a municipal proprietor rather than as a regulator. Bldg. & Constr. Trades Council v. Associated Builders & Contractors, 507 U.S. 218, 227, 229, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993); Associated Gen. Contractors of Am. v. Metro. Water Diet., 159 F.3d 1178, 1182-83 (9th Cir.1998); see also Shell Oil, 830 F.2d at 1062. To determine whether a government entity is acting in a proprietary or a regulatory capacity, we consider whether “the challenged action essentially reflect[s] the entity’s own interest in its efficient procurement of needed goods and services, as measured by comparison with the typical behavior of private parties in similar circumstances” and whether “the narrow scope of the challenged action defeat[s] an inference that its primary goal was to encourage a general policy rather than address a specific proprietary problem.” Aeroground, Inc. v. City & County of San Francisco, 170 F.Supp.2d 950, 957 (N.D.Cal.2001) (quoting Cardinal Towing & Auto Repair, Inc. v. City of Bedford, 180 F.3d 686, 693 (5th Cir.1999)). The district court correctly concluded that, in requiring Olympic to comply with certain safety demands, Seattle was acting as a regulator rather than as a municipal proprietor. Olympic Pipe Line, 316 F.Supp.2d at 906-07. The City’s interest is not that of a private market participant that owns a pipeline or competes in the pipeline market or a related market. Rather, Seattle in its sovereign capacity owns the streets and land under which the Seattle Lateral runs, for the purpose of maintaining a transportation system. See Shell Oil, 830 F.2d at 1057-58 (holding that the City of Santa Monica is not a market participant in the setting of franchise fees for purposes of the dormant Commerce Clause because the City holds the streets, under which the pipeline runs, in its" }, { "docid": "20734852", "title": "", "text": "BIE-CA concedes, “[a]n inept proprietor is still a proprietor.” Appellant Br. at 46. The allegation, even if true, does not demonstrate that the City was regulating. We find persuasive the Ninth Circuit’s reasoning in Rancho Santiago, a similar case in which nonunion contractors challenged a pre-hire construction labor agreement: The plaintiffs further contend that the [PLA] does not advance an interest in efficient procurement because it presents several downside risks while offering no benefits in terms of costs, labor availability, or timeliness for the construction. Whether the [PLA’s] benefits outweighed its costs, however, bears only on whether the District made a good business decision, not on whether it was pursuing regulatory, as opposed to proprietary, goals. We must keep in mind that congressional intent is the touchstone of our preemption analysis, Engine Mfrs., 498 F.3d at 1040, and we have no reason to think that Congress intended to allow beneficial state contracts while preempting similar contracts in which the state got a bad deal. 623 F.3d at 1025. It bears repeating that BIECA’s theory of the case is preemption: that the PLAs are not contracts but regulations and therefore are preempted by the NLRA. It is hard to see why, even if political favoritism was a motivating factor in the City’s decision to contract with particular contractors or unions, the PLAs would be thereby transformed from contracts into regulations. See Rancho Santiago, 623 F.3d at 1026 (“Plaintiffs contend that the [PLA]’s primary purpose was to reward the unions that supported the Measure E campaign.... [W]e are quite certain that Congress did not intend for the NLRA’s or ERISA’s preemptive scope to turn on state officials’ subjective reasons for adopting a regulation or agreement.”). CONCLUSION “In the absence of any express or implied indication by Congress that a State may not manage its own property when it pursues its purely proprietary interests, and where analogous private conduct would be permitted, this Court will not infer such a restriction.” Boston Harbor, 507 U.S. at 231-32, 113 S.Ct. 1190. The PLAs challenged here represent the City’s permissible proprietary choice; the City has behaved" }, { "docid": "21157995", "title": "", "text": "a market participant and escapes preemption review. But if the funding condition does not serve, or sweeps more broadly than a government agency’s proprietary economic interest, it must submit to review under [in this case] labor law preemption standards. Id. at 216 (citation omitted). I acknowledge that the First Circuit’s analysis in Quincy is on all fours with the facts of record, as far as it goes. The Court in Quincy, however, did not address either the market participation theory (because the defendant in Quincy failed to raise it below, see 759 F.3d at 131) or the second prong of the Michigan DOL preemption test, that is, whether the mandatory language at issue fell “within the area that Congress intended ERISA to control exclusively,” 543 F.3d at 281. With respect to the former, under Sage’s two-step test, there can be no dispute that the Route 9 Library Project is funded by NCC; therefore, NCC has a proprietary interest in the project. As to the “specifically tailored” requirement, I agree with the reasoning in Lott Constructors, Inc. v. Camden Cty. Bd. of Chosen Freeholders, 1994 WL 263851, at *11-12 (D.N.J. Jan. 31, 1994), that the crucial factor is whether the Code requirements apply to every construction project in NCC or only to NCC’s own projects. The Code applies only to NCC’s own projects and, therefore, is sufficiently tailored to NCC’s proprietary interest. I also agree with the reasoning of the Sixth Circuit in Michigan DOL, to wit, even if a disputed State or local law mandates various apprenticeship conditions for bidding, preemption is not appropriate unless those mandates fall within the area that Congress intended ERISA to control exclusively. In this regard, there is no indication of record that contradicts the logic applied in Michigan DOL, that is: (1) States have long regulated apprenticeship standards and training; (2) ERISA has nothing to say about the standards to be applied to apprenticeship training programs; and (3) what triggers ERISA’s potential application to such laws is not the existence of an apprenticeship training program, but the existence of a separate fund to support" }, { "docid": "21157996", "title": "", "text": "Inc. v. Camden Cty. Bd. of Chosen Freeholders, 1994 WL 263851, at *11-12 (D.N.J. Jan. 31, 1994), that the crucial factor is whether the Code requirements apply to every construction project in NCC or only to NCC’s own projects. The Code applies only to NCC’s own projects and, therefore, is sufficiently tailored to NCC’s proprietary interest. I also agree with the reasoning of the Sixth Circuit in Michigan DOL, to wit, even if a disputed State or local law mandates various apprenticeship conditions for bidding, preemption is not appropriate unless those mandates fall within the area that Congress intended ERISA to control exclusively. In this regard, there is no indication of record that contradicts the logic applied in Michigan DOL, that is: (1) States have long regulated apprenticeship standards and training; (2) ERISA has nothing to say about the standards to be applied to apprenticeship training programs; and (3) what triggers ERISA’s potential application to such laws is not the existence of an apprenticeship training program, but the existence of a separate fund to support the training program and the related reporting, disclosure, and fiduciary responsibilities associated therewith. See 543 F.3d at 282. Given that the Code applies to ERISA and non-ERISA plans alike, and has no directive related to the funding sources of any apprenticeship program, I conclude that plaintiff has not met its burden to demonstrate its likelihood of success on the preemption issue. C. Irreparable Harm Plaintiff argues that, in the absence of injunctive relief, its members will be irreparably harmed because they “could lose work as well as the opportunity to meaningfully compete for contracts,” and this type of injury cannot be compensated by money damages. {See D.I. 15 at 10) Defendants reason that the Code simply provides incentives to participate in an apprenticeship program, and has done so since 2007; the fact that plaintiffs members choose not to participate in such programs cannot equate to irreparable harm. Plaintiffs position is not an unreasonable one, in light of the fact that not all trades have available State-approved training programs. Nevertheless, plaintiffs argument is based more on" }, { "docid": "5627907", "title": "", "text": "only “attempting to ensure an efficient project that would be completed as quickly and effectively as possible at the lowest cost.” Boston Harbor, 113 S.Ct. at 1198. Significantly, the state’s action was limited to a particular job, and did not penalize bidders for practices on different projects for other clients. See id. at 1197 (noting Gould “addressed employer conduct unrelated to the employer’s performance of contractual obligations to the State”). Under these circumstances, the Court.found that the agency’s actions were not “tantamount to regulation” and thus not subject to preemption under the NLRA. Courts have similarly shielded contract specifications from preemption when they applied to a single discreet contract and were designed to insure efficient performance rather than advance abstract policy goals. See Associated General Contractors of America v. Metropolitan Water District of Southern California, 159 F.3d 1178, 1183 (9th Cir.1998) (requirement that contractors on project adhere to a particular collective bargaining agreement that included benefit package was not preempted by ERISA); Colfax v. Illinois State Toll Highway Authority, 79 F.3d 631, 634-35 (7th Cir.1996) (requirement that contractor adhere to area collective bargaining agreement was not preempted by NLRA); Minnesota Chapter of Associated Builders and Contractors, Inc. v. County of St. Louis, 825 F.Supp. 238, 243-44 (D.Minn.1993) (county’s requirement that bidders for jail construction contract agree to labor agreement that set benefit levels but also contained nonstrike clause not preempted by ERISA). B. Proprietary nature of the City’s actions Here, the City acted as a typical private party would act in seeking a towing service, and preemption should not apply. In distinguishing between proprietary action that is immune from preemption and impermissible attempts to regulate through the spending power, the key under Boston Harbor is to focus on two questions. First, does the challenged action essentially reflect the entity’s own interest in its efficient procurement of needed goods and services, as measured by comparison with the typical behavior of private parties in similar circumstances? Second, does the narrow scope of the challenged action defeat an inference that its primary goal was to encourage a general policy rather than address a" }, { "docid": "5627905", "title": "", "text": "goal and its terms reached well beyond interaction with the city); Van-Go Transport Co., Inc. v. New York City Board of Education, 53 F.Supp.2d 278, 288 (E.D.N.Y.) (policy of refusing to conditionally certify replacement workers that was applied to all of department’s student transport contracts was preempted under NLRA). See also Keystone Chapter Associated Builders and Contractors, Inc. v. Foley, 37 F.3d 945, 955 n. 15 (3d Cir.1994) (noting in dicta that proprietary exception could not save minimum wage rule for state contracts since private parties would not ordinarily embrace a policy that increased the cost of contracting without regard to particular circumstances). Most government contracting decisions do not constitute concealed attempts to regulate, however. In order to function, government entities must have some dealings with the market. While the leverage a state can exert through its spending power and the absence of a true profit motive to restrain government action may create a temptation to take advantage of these interactions to pursue policy goals, the presence of the state in the market cannot automatically be assumed to be motivated by a regulatory impulse. Given the volume of, and obvious need for, interaction between the government and the private sector, the application of preemption in a manner that hobbles state and local governments’ purchasing efforts threatens severe disruption. Boston Harbor recognized this reality. In Boston Harbor, the Court confronted a situation in which a state agency was under a judicial order to complete a project within a set time frame. To prevent time-consuming work stoppages, the agency agreed to employ a union workforce in exchange for a no-strike guarantee. The Court distinguished Gould and found that such proprietary action was not subject to preemption by the NLRB. It found that the agency had focused on the government’s own interests — uninterrupted completion to assure compliance with the court order — and had done so by striking the type of labor bargain a private company might have sought in similar circumstances. In contrast to the state’s admitted desire to encourage labor compliance as a general matter in Gould, the agency was" }, { "docid": "22991121", "title": "", "text": "in its role as a market regulator, not in its capacity as a market participant.” Id. The expansive scope of Delaware’s regulations also distinguishes the case before us from the previously discussed market participation cases, and, in particular, from White, the broadest of the decisions. “The city order at issue in White included the workforce restriction in the city’s notice for bids, so the contracting company was aware of the condition if it decided to bid and could elect not to participate in a sale under that requirement.” GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1515 (11th Cir.1993) (discussing White, 460 U.S. at 206, 103 S.Ct. 1042). In this respect, the city was operating much like a private entity in providing specific conditions within individual bid proposals. By contrast, the Delaware PWL and ATRR are untethered from any specific spending or procurement project, and apply not just to public works contracts; they also dictate the wage and employment terms of a registered sponsor’s apprenticeship program regardless of the State’s involvement with a particular construction project. As the Fifth Circuit recently observed, “a state cannot regulate others in the market in which it participates; the [market participant] doctrine only protects the state’s participation itself.” United Healthcare, 602 F.3d at 625. Here, DDOL’s involvement with the market extends beyond state participation. Several cases addressing comparable prevailing wage laws of other states bolster this conclusion. In addressing the Pennsylvania Prevailing Wage Act, 43 Pa. Const. Stat. § 165-1 et seq. (2009), we previously observed in the preemption context that Pennsylvania was “clearly acting with an ‘interest in setting policy,’ not as a proprietor,” in enacting and applying the statute. Keystone Chapter, Assoc. Builders & Contractors, Inc. v. Foley, 37 F.3d 945, 955 n. 15 (3d Cir.1994) (quoting Boston Harbor, 507 U.S. at 229, 113 S.Ct. 1190). “The Prevailing Wage Act aims to ensure that workers receive adequate wages, a governmental objective.” Id. Accordingly, it “would be difficult for the state to claim it is acting as a private market participant when it is making rules that raise the cost of its" }, { "docid": "20293714", "title": "", "text": "106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). As to materiality, “[ojnly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248, 106 S.Ct. 2505. In determining whether the dispute is genuine, the Court’s function is not to weigh the evidence, to determine the truth of the matter, or to evaluate credibility. Rather, the Court is only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party. McGreevy, 413 F.3d at 363; see also Simpson v. Kay Jewelers, 142 F.3d 639, 643 n. 3 (3d Cir.1998) (quoting Fuentes v. Perskie, 32 F.3d 759, 762 n. 1 (3d Cir.1994)). In evaluating the evidence, the Court must interpret the facts in the light most favorable to the non-moving party, and draw all reasonable inferences in its favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir.2007). V. DISCUSSION A. ERISA Background ERISA is a comprehensive federal statute enacted “in the interests of employees and their beneficiaries” to afford minimum standards to employee benefit plans, “assuring the equitable character of such plans and their financial soundness.” Page v. Bancroft Neurohealth, Inc., 575 F.Supp.2d 664, 670-71 (E.D.Pa.2008) (citing 29 U.S.C. § 1001(a)). It provides for the uniform federal regulation of employee benefit plans and promotes administrative efficiency through the exclusive federal regulation of such plans. Keystone Chapter, Associated Builders & Contractors, Inc. v. Foley, 37 F.3d 945, 954 (3d Cir.1994). “ERISA subjects employee benefit plans to participation, funding, and vesting requirements, and to uniform standards on matters like reporting, disclosure, and fiduciary responsibility.” Id. (citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90-91, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)). B. Whether Plaintiffs Policy is an ERISA Plan The threshold issue in this case is whether Plaintiffs Policy is governed by ERISA. The United States Court of Appeals for the Third Circuit has recognized that “ERISA applies to ‘any employee benefit plan if it is established or maintained ... by any employer engaged in commerce.’" }, { "docid": "20652983", "title": "", "text": "of the New York Labor Law for similar reasons in Burgio & Campofelice, Inc. v. New York Department of Labor, 107 F.3d 1000 (2d Cir.1997). Section 220 requires employers on public works projects to pay employees a “prevailing rate” of compensation. Id. at 1003. The prevailing rate must equal the combined value of wages and benefits guaranteed to workers on private projects through “collective bargaining agreements” that cover “workers in the same trade or occupation in the locality where the work is to be performed.” Id. (citing N.Y. Lab. Law § 220(5)(a), (3)). In upholding the law, we observed that the statute may require employers to change their compensation packages to comply with the prevailing rate requirement, but that it permits them to do so “exclusively through ERISA plans, exclusively through nonERISA plans, through additional cash wages, or through some combination of the three.” Id. at 1009. Because the law leaves administrators free to comply through means unconnected to ERISA plans, we concluded that it lacked a sufficient “connection with” such plans to require preemption. Id.; accord WSB Elec., Inc. v. Curry, 88 F.3d 788, 796 (9th Cir.1996); Keystone Chapter, Associated Builders & Contractors, Inc. v. Foley, 37 F.3d 945, 958 (3d Cir.1994). The Wage Parity Law gives employers similar freedom to select the manner in which they pay the “minimum rate of home care aide total compensation.” Under the Law, “[t]otal compensation” may consist of “wages and other direct compensation paid to or provided on behalf of the employee,” including “health, education, or pension benefits, supplements in lieu of benefits and compensated time off.” N.Y. Pub. Health Law § 3614-c(1)(b). The statute is agnostic as to the mix of wages and benefits that employers provide, so long as the total amount equals or exceeds the applicable minimum rate. Where, as here, “a legal requirement may be easily satisfied through means unconnected to ERISA plans ... it ‘affect[s] employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.’ ” Burgio, 107 F.3d at 1009 (quoting Shaw, 463 U.S." }, { "docid": "23320632", "title": "", "text": "claim for emotional distress from husband’s denial of benefits not preempted by ERISA); Firestone Tire & Rubber Co. v. Neusser, 810 F.2d 550 (6th Cir.1987) (municipal ordinance imposing income tax of general application on employees’ contributions to benefit plans not preempted by ERISA). Whether ERISA preempts legal malpractice claims against attorneys representing ERISA plans is a question of first impression for the federal circuit courts, although several federal district courts have addressed the issue, uniformly concluding that ERISA does not preempt such claims. See, e.g., Sullivan v. Lampf Lipkind, Prupis, Petigrow & Labue, 1994 WL 669624, at *9-*10 (D.N.J. Nov.21, 1994) (unpublished); Anoka Orthopaedic Associates, P.A. v. Mutschler, 773 F.Supp. 158, 164, 168 (D.Minn.1991). Moreover, the various circuit and district courts that have faced the preemption question in cases involving professional negligence or malpractice claims against other service providers to ERISA plans have declined to read ERISA’s preemptive scope so broadly. See, e.g., Painters of Phila. Dist. Council No. 21 Welfare Fund v. Price Waterhouse, 879 F.2d 1146, 1153 n. 7 (3d Cir.1989) (“ERISA does not generally preempt state professional malpractice actions”); Airparts Co. v. Custom Benefit Services of Austin, Inc., 28 F.3d 1062, 1065 (10th Cir.1994) (consultant); Bourns, Inc. v. KPMG Peat Marwick, 876 F.Supp. 1116, 1122 (C.D.Cal.1994) (auditor); Berlin City Ford, Inc. v. Roberts Planning Group, 864 F.Supp. 292, 296 (D.N.H.1994) (consultant); Mertens v. Kaiser Steel Retirement Plan, 829 F.Supp. 1158, 1162 (N.D.Cal.1992) (actuary); Richards v. Union Labor Life Ins. Co., 804 F.Supp. 1101, 1103-04 (D.Minn.1992) (actuary); Carl Colteryahn Dairy, Inc. v. Western Pa. Teamsters & Employers Pension Fund, 785 F.Supp. 536, 543 (W.D.Pa.1992) (accountants and actuaries); Framingham Union Hasp., Inc. v. Travelers Ins. Co., 721 F.Supp. 1478, 1490 (D.Mass. 1989) (accountant); Isaacs v. Group Health, Inc., 668 F.Supp. 306, 312-13 (S.D.N.Y.1987) (actuary). Indeed, Sweeney has not cited a single decision holding that ERISA preempts a malpractice or professional negligence claim against a service provider to an ERISA plan. We now join this unanimous body of federal law and conclude that Custer’s legal malpractice claim against Sweeney does not fall under ERISA’s preemptive umbrella. We do so because" }, { "docid": "22991151", "title": "", "text": "likewise found the market participant exception inapplicable in comparable instances where a municipality's participation in a market effected concurrent regulation of pri vale parties in that market. See, e.g. Waste Mgmt. Holdgs., Inc. v. Gilmore, 252 F.3d 316, 345 (4th Cir.2001) (finding that Virginia “was not acting as a private participant in the waste disposal market” by regulating the conduct of others in that market) (citation omitted); USA Recycling, Inc. v. Town of Babylon, 66 F.3d 1272, 1282 (2d Cir.1995) (\"[S]tates and local governments do not enjoy carte blanche to regulate a market simply because they also participate in that market.”). . Although this line of cases involves preemption analysis under the NLRA and other federal statutes, the Supreme Court’s discussion of the market participant exception in this context relies upon and conforms with its dormant Commerce Clause jurisprudence, and is instructive. See, e.g., Engine Mfrs. Ass'n v. So. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1040 (9th Cir.2007) (\"After the development of the market participant doctrine in [] dormant Commerce Clause cases, the Supreme Court ... [has] applied the doctrine to protect proprietary state action from preemption by various federal statutes.”); Cardinal Towing & Auto Repair, Inc. v. City of Bedford, Tx., 180 F.3d 686, 691 (5th Cir.1999) (noting that the market participant exception originating in dormant Commerce Clause analysis \"has been recognized in preemption cases”); Metro. Taxicab Bd. of Trade v. City of New York, No. 08 Civ. 7837, 2008 WL 4866021, at *7 (S.D.N.Y. Oct. 31, 2008) (\"The market participant doctrine is an extension of a principle from the Commerce Clause ... and has been extended to preemption jurisprudence”) (citing Alexandria Scrap, 426 U.S. at 810, 96 S.Ct. 2488). . In Boston Harbor, the Supreme Court found that the NLRA did not preempt a bid specification by a Massachusetts agency requiring bidders to abide by a certain labor agreement because the government was acting as a market participant, rather than regulating labor-management relations. 507 U.S. at 229, 113 S.Ct. 1190 (explaining .that preemption doctrines apply only to state regulation). The Court emphasized that the cleanup project" }, { "docid": "5292910", "title": "", "text": "a state or municipality takes in a proprietary capacity' — actions similar to those a private entity might take' — and actions a state or municipality takes that are attempts to regulate. The former type of action is not subject to preemption while the latter is. For example, in Building & Trades Council v. Associated Builders, 507 U.S. 218, 226, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993), the Supreme Court held that a labor contract was not preempted by the National Labor Relations Act because it was not “government regulation” but rather “constitute^] proprietary conduct.” Id. at 232, 113 S.Ct. at 1199. More recently, in Cardinal Towing & Auto Repair, Inc. v. City of Bedford, Texas, 180 F.3d 686 (5th Cir.1999), we considered whether a municipal ordinance and a contract entered into pursuant to that ordinance were preempted as “law[s], regulation[s], or other provision[s] having the force and effect of law.” Id. at 691. Analyzing the contract and the ordinance in the same manner, we held that neither was preempted because both were valid exercises of proprietary power rather than impermissible attempts to regulate. See id. at 693-94; see also Associated Gen. Contractors of America v. Metropolitan Water Dist. of S. Cal., 159 F.3d 1178, 1182-83 (9th Cir.1998) (holding that labor contracts between a state entity and private groups were not “laws” because they were not efforts to regulate but rather “reflect[ed] an owner’s desire to contractually assure peace and prosperity on particular projects”). Thus, the critical inquiry here is whether the use agreements represent a valid exercise of the cities’ proprietary powers. This question is easily resolved. The use agreements are essentially coextensive with the Ordinance, indicating in their breadth an intent to achieve everything achieved by the Ordinance. Cf. Cardinal Towing, 180 F.3d at 694 (looking to the scope of the contract and the activity it covered to determine whether it represented an attempt to regulate). They were enacted to effect the Ordinance, and the most recent version of the agreements directly links the airlines’ obligations to the terms of the Ordinance: “Airline agrees that it shall conduct" }, { "docid": "22991122", "title": "", "text": "construction project. As the Fifth Circuit recently observed, “a state cannot regulate others in the market in which it participates; the [market participant] doctrine only protects the state’s participation itself.” United Healthcare, 602 F.3d at 625. Here, DDOL’s involvement with the market extends beyond state participation. Several cases addressing comparable prevailing wage laws of other states bolster this conclusion. In addressing the Pennsylvania Prevailing Wage Act, 43 Pa. Const. Stat. § 165-1 et seq. (2009), we previously observed in the preemption context that Pennsylvania was “clearly acting with an ‘interest in setting policy,’ not as a proprietor,” in enacting and applying the statute. Keystone Chapter, Assoc. Builders & Contractors, Inc. v. Foley, 37 F.3d 945, 955 n. 15 (3d Cir.1994) (quoting Boston Harbor, 507 U.S. at 229, 113 S.Ct. 1190). “The Prevailing Wage Act aims to ensure that workers receive adequate wages, a governmental objective.” Id. Accordingly, it “would be difficult for the state to claim it is acting as a private market participant when it is making rules that raise the cost of its contracts.” Id. We concluded in that decision that the state’s interest in establishing labor standards and wages constituted an exercise of the State’s traditional police power, not market participation. Id. In an analogous decision, the Ninth Circuit addressed the payment of prevailing wages pursuant to California’s apprenticeship regulations, observing: The State did not merely create apprenticeship standards in its contract with [Plaintiff] nor were the apprenticeship standards in this case created based upon unique needs that the detention facility project presented. The apprentice prevailing wage law applies uniformly to all public works contracts executed in the State of California and is a mechanism through which the State regulates apprenticeship programs and the employment of apprentices on public works projects. As this court has stated previously: “The state’s involvement does not end with the awarding of the contract. Section 1777.5 is aimed at regulating contractors who work on public contracts.” Dillingham Constr. N.A., Inc. v. County of Sonoma, 190 F.3d 1034, 1038 (9th Cir. 1999) (citation omitted) (emphasis added). Consequently, the Ninth Circuit found the apprenticeship" }, { "docid": "20734853", "title": "", "text": "the case is preemption: that the PLAs are not contracts but regulations and therefore are preempted by the NLRA. It is hard to see why, even if political favoritism was a motivating factor in the City’s decision to contract with particular contractors or unions, the PLAs would be thereby transformed from contracts into regulations. See Rancho Santiago, 623 F.3d at 1026 (“Plaintiffs contend that the [PLA]’s primary purpose was to reward the unions that supported the Measure E campaign.... [W]e are quite certain that Congress did not intend for the NLRA’s or ERISA’s preemptive scope to turn on state officials’ subjective reasons for adopting a regulation or agreement.”). CONCLUSION “In the absence of any express or implied indication by Congress that a State may not manage its own property when it pursues its purely proprietary interests, and where analogous private conduct would be permitted, this Court will not infer such a restriction.” Boston Harbor, 507 U.S. at 231-32, 113 S.Ct. 1190. The PLAs challenged here represent the City’s permissible proprietary choice; the City has behaved just as any other major landowner or developer might to secure labor for many of its construction projects. Because the PLAs are market activity and not regulation, the preemption claim must fail. The judgment of the district court is therefore AFFIRMED. . Since BIECA and UECA make essentially the same arguments, in the interests of simplicity we henceforth refer to the plaintiffs-appellants collectively as BIECA, except where it is necessary to distinguish particular arguments made on behalf of UECA. . BIECA’s argument that the City PLAs are not \"narrow” because they cover many projects spanning several years misunderstands the relevant meaning of \"narrow” or \"tailored\" in this context. A contract is \"specifically tailored to one particular job” within the meaning of Boston Harbor, 507 U.S. at 232, 113 S.Ct. 1190, if it governs the parties' behavior on the specific project or projects in the contract rather than on unrelated matters to which the state might not even be a party. Extracontractual effect is an indicator of regulatory rather than proprietary intent, so a provision that" }, { "docid": "84253", "title": "", "text": "v. N.Y. State Dep’t of Labor, 107 F.3d 1000, 1009 (2d Cir.1997); Keystone Chapter, Associated Builders & Contractors, Inc. v. Foley, 37 F.3d 945, 961 (3d Cir.1994). The Act offers a compliance option that is not predicated on the existence of an ERISA plan. Again, an employer may comply by paying an assessment into Maryland’s Fair Share Health Care Fund. B. The Act does not impede an employer’s ability to administer its ERISA plans under nationally uniform provisions. A problem would arise if the Act dictated a plan’s system for processing claims, paying benefits, or determining beneficiaries. See Egelhoff, 532 U.S. at 147, 150, 121 S.Ct. 1322. But the Act does none of those things. The only aspect of the Act that might impact plan administration is the requirement for reporting data about Maryland employee numbers, payroll, and ERISA plan spending. However, any burden this requirement puts on plan administration is simply too slight to trigger ERISA preemption. See Foley, 37 F.3d at 963 (requiring employers to record benefits contributions will not influence decisions about the structure of ERISA plans and so will not impede the administration of nationwide plans); see also Minn. Chapter of Associated Builders & Contractors, Inc. v. Minn. Dep’t of Labor & Industry, 866 F.Supp. 1244, 1247 (D.Minn.1993) (“The requirement of calculating [the cost of benefits] falls on the employer itself, but does not place any administrative burden on the plan. The requirements of calculating costs and keeping records may somewhat increase the cost of the benefits plans, but this incidental impact on the plans need not lead to preemption.”). C. The Act does not mandate a certain level of ERISA benefits. A statute that “alters the incentives, but does not dictate the choices, facing ERISA plans” is not preempted. Calif. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 334, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997). The ERISA preemption provision allows for uniformity of administration and coverage, but “cost uniformity was almost certainly not an object of preemption.” N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers" }, { "docid": "3862055", "title": "", "text": "delay “undermines the integrity of the judicial system[,] ... wastes judicial resources, burdens jurors and witnesses, and imposes substantial costs upon the litigants.” Hill, 179 F.3d at 756. Having chosen “to defend on the merits in federal court,” the District will “be held to that choice.” See id. at 758. We accordingly hold that the District has waived its sovereign immunity defense. C. Merits Having concluded that this appeal is not moot, and that the District has waived its sovereign immunity, we proceed to consider the merits of the plaintiffs’ claims. 1. ERISA and NLRA Preemption Claims Whether federal law preempts a particular state action is fundamentally a question of congressional intent. See Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1039-40 (9th Cir.2007). Federal law will preempt state laws that “interfere with, or are contrary to, federal law” only if “that was the clear and manifest purpose of Congress.” Id. at 1039-40 (internal quotations and citation omitted). The so-called “market participant doctrine” offers us a presumption about Congress’s purposes. In general, Congress intends to preempt only state regulation, and not actions a state takes as a market participant. See Bldg. & Constr. Trades Council v. Associated Builders and Contractors of Mass./R.I., Inc. (“Boston Harbor”), 507 U.S. 218, 227, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993); Engine Mfrs., 498 F.3d at 1042. This doctrine applies to claims of NLRA and ERISA preemption. See Boston Harbor, 507 U.S. at 227, 113 S.Ct. 1190 (NLRA); Associated Gen. Contractors of Am. v. Metro. Water Dist. of S. Cal. (“MWD ”), 159 F.3d 1178, 1182 (9th Cir.1998) (ERISA). In assessing the plaintiffs’ preemption claims, we therefore must first determine whether the District acted as a regulator or as a market participant when it entered into the PSA. Because we conclude that the District acted as a market participant, the plaintiffs’ ERISA and NLRA preemption claims fail at the threshold. In general, state action falls within the market participant exception to preemption when the state entity directly participates in the market by purchasing goods or services. See Engine Mfrs., 498" }, { "docid": "473203", "title": "", "text": "Transp. Co. v. New York City Bd. of Educ., 53 F.Supp.2d 278, 293 (E.D.N.Y.1999). Instead, courts have gauged the extent of preemption by the objective effects of the challenged state action, looking to see whether the action functions to promote a particular labor policy in general or else to serve legitimate proprietary needs within a more discrete setting. Compare Wisconsin Dep’t of Indus., Labor & Human Relations v. Gould, Inc., 475 U.S. 282, 289, 106 S.Ct. 1057, 1062, 89 L.Ed.2d 223 (1986) (state law barring contracts with companies with record of NLRA violations was not proprietary); Chamber of Commerce, 74 F.3d at 1339 (executive order barring contracts with companies that permanently replaced striking workers was not proprietary); Van-Go Transp. Co., 53 F.Supp.2d at 288 (policy of refusing to conditionally certify replacement workers applicable to all transport contracts was not proprietary); and Air Transport Assoc. v. City & County of San Francisco, 992 F.Supp. 1149, 1179 (N.D.Cal.1998) (city ordinance barring contracts with employers that did not offer domestic partner benefits was not proprietary); with Cardinal Towing & Auto Repair, 180 F.3d at 697 (city ordinance establishing competitive bidding scheme for municipal towing contract was proprietary); Associated Gen. Contractors v. Metropolitan Water Dist., 159 F.3d 1178, 1183 (9th Cir.1998) (requirement that contractors adhere to collective bargaining agreement with particular benefits package was proprietary); Colfax, 79 F.3d 631, 634-35 (7th Cir.1996) (requirement that contractor adhere to area collective bargaining agreement was proprietary); and Minnesota Chapter of Assoc. Builders & Contractors, Inc. v. County of St. Louis, 825 F.Supp. 238, 243-44 (D.Minn.1993) (requirement that bidders for jail construction contract agree to labor agreement with benefits levels and no-strike clause was proprietary). In the present case, the challenged City actions satisfy this standard. To begin with, the Unions have proffered no legal arguments that similar actions, if undertaken by a private actor, would violate the NLRA. See Boston Harbor, 507 U.S. at 231, 113 S.Ct. at 1198 (“To the extent that a private purchaser may choose a contractor based upon that contractor’s willingness to enter into a prehire agreement, a public entity as purchaser should" }, { "docid": "3862056", "title": "", "text": "In general, Congress intends to preempt only state regulation, and not actions a state takes as a market participant. See Bldg. & Constr. Trades Council v. Associated Builders and Contractors of Mass./R.I., Inc. (“Boston Harbor”), 507 U.S. 218, 227, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993); Engine Mfrs., 498 F.3d at 1042. This doctrine applies to claims of NLRA and ERISA preemption. See Boston Harbor, 507 U.S. at 227, 113 S.Ct. 1190 (NLRA); Associated Gen. Contractors of Am. v. Metro. Water Dist. of S. Cal. (“MWD ”), 159 F.3d 1178, 1182 (9th Cir.1998) (ERISA). In assessing the plaintiffs’ preemption claims, we therefore must first determine whether the District acted as a regulator or as a market participant when it entered into the PSA. Because we conclude that the District acted as a market participant, the plaintiffs’ ERISA and NLRA preemption claims fail at the threshold. In general, state action falls within the market participant exception to preemption when the state entity directly participates in the market by purchasing goods or services. See Engine Mfrs., 498 F.3d at 1040 (describing the “single inquiry” in market participant cases as “whether the challenged program constituted direct state participation in the market”). But the line between non-preempted market participation and preempted regulation is not always so clear, and a state’s direct participation in the market will not always escape preemption. If a state’s direct participation in the market is “tantamount to regulation,” the market participant doctrine will not exempt the state’s action from preemption. Wis. Dep’t of Indus., Labor & Human Relations v. Gould, 475 U.S. 282, 289, 106 S.Ct. 1057, 89 L.Ed.2d 223 (1986). Thus, in Gould, the Supreme Court held that the NLRA preempted a state law forbidding state procurement agents from using state funds to do business with companies that had repeatedly violated the NLRA, even though the law constrained only the state’s own participation in the market. Id. at 283-84, 287, 106 S.Ct. 1057. The Court explained that the state law “on its face ... serves plainly as a means of enforcing the NLRA,” and that “[n]o other purpose could" } ]

[ { "docid": "12238541", "title": "", "text": "resulted in the inconsistencies. We are not insensitive to the anxiety suffered by relator while awaiting trial in a capital case. However, considering the record as a whole, considering the length of the delay involved, the procedural chronology of the case, its complexity, and all the attendant circumstances, the Commonwealth acted as expeditiously as could reasonably be expected. Relator all during this time was represented by skilled and experienced counsel who competently and thoroughly explored every avenue of defense available to relator. There was no loss or destruction of evidence in this ease as appears in others which would have impaired relator’s ability to present an adequate defense. Considering the anxiety suffered by relator and the alleged prejudicial effects of the delays, when balanced against the reasons for the delays, their source, and the rights of public justice, the balance, we believe, is weighed against relator. We therefore, reject relator’s contention that he was denied the constitutional right to a speedy trial. Relator’s contention that the evidence was insufficient to sustain a conviction is without merit. A Federal Court may overturn a State conviction only where there is no evidence to support the verdict. See Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). When the record establishes a basis for the conviction, it is not our province to review the sufficiency of the evidence or to substitute our judgment for that of the jury. United States ex rel. Cunningham v. Maroney, 397 F.2d 724 (3rd Cir. 1968), cert. denied 393 U.S. 1045, 89 S.Ct. 663, 21 L.Ed.2d 594 (1969). Without more, there is testimony in the record which demonstrates relator’s direct participation in the rape of Natalie Tuchar and aiding and abetting his co-defendants during the course of the crimes committed. The evidence also is sufficient to meet the requirements of the Pennsylvania Felony Murder Rule, Commonwealth v. Batley, 436 Pa. 377, 260 A.2d 793 (1970); Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728 (1962) cert. denied 371 U.S. 851, 83 S.Ct. 93, 9 L.Ed. 2d 87 (1963). We find relator’s remaining" } ]

[ { "docid": "18001188", "title": "", "text": "be considered in a federal habeas corpus proceeding by a state prisoner. Hendricks v. Swenson, 456 F.2d 503 (8th Cir. 1972); Sinclair v. Turner, 447 F.2d 1158 (10th Cir. 1971), cert. denied, 405 U.S. 1048, 92 S.Ct. 1329, 31 L.Ed.2d 590 (1972); United States ex rel. Cunningham v. Maroney, 397 F.2d 724 (3d Cir. 1968), cert. denied, 393 U.S. 1045, 89 S.Ct. 663, 21 L.Ed.2d 594 (1969). Only where the charge against a defendant is totally devoid of evidentiary support is his conviction unconstitutional under the due process clause of the fourteenth amendment. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961). Consequently, federal habeas relief under § 2254 is available to the state prisoner on the ground of insufficiency of the evidence only if there is no evidence whatever supporting conviction. It is also fundamental that federal courts possess only limited authority to consider state court evidentiary rulings in a habeas proceeding by a state prisoner. As Judge Webster, now a member of this court, observed in Parker v. Swenson, 332 F.Supp. 1225, 1229 (E.D.Mo.1971), aff’d, 459 F.2d 164 (8th Cir. 1972), cert. denied, 409 U.S. 1126, 93 S.Ct. 943, 35 L.Ed.2d 258 (1973): This court will not review the wisdom of evidence rulings on petition of writ of habeas corpus. It will limit the scope of its inquiry to an examination of whether federally guaranteed rights have been violated. [Citations omitted.] Only where admission of evidence is so prejudicial as to constitute a denial of due process will federal courts intervene in state proceedings on petition for writ of habeas corpus. [Citations omitted.] Introduction at trial of evidence of prior crimes is a matter of state evidentiary law and thus will ordinarily not be subject to review in federal habeas corpus proceedings. The thrust of petitioner’s attack upon the sufficiency of the evidence is that no witness placed him at the scene of the Algona robbery and murder. Petitioner therefore asserts that there was no evidence, either direct or" }, { "docid": "3062279", "title": "", "text": "of systematic discrimination of negroes from the grand jury in Danville as “patently frivolous”. This court has recently considered a similar contention in the case of Hairston v. Cox, 311 F.Supp. 1084, which arises out of a jury conviction in the Circuit Court of Henry County. In that case we said a petitioner, in order to obtain relief, must demonstrate to the court purposeful discrimination which is based on race. Likewise, purposeful discrimination may not be assumed or proved by the mere assertion of the petitioner that such discrimination did exist. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Therefore, the burden of proof is placed squarely on the petitioner at the outset and not upon a factual situation found within a totally different ease. Petitioner’s claim seems nothing more than a mere assertion, at the most. In accordance with the foregoing, the court concludes that the petitioner has failed to establish a claim upon which habeas corpus relief can be granted. The second allegation raised by Wilson is that the evidence, as presented, was insufficient to support the verdict of first degree murder. This court follows established procedures which make it clear that an inquiry into the sufficiency of the evidence is not within the proper functions of a federal court when reviewing a state conviction by way of habeas corpus. Our inquiry, based upon the records before the court, is one which only considers whether there was any evidence to support the verdict, not the sufficiency of such evidence. The district court in United States ex rel. Simmons v. Commonwealth of Pa., 292 F.Supp 830, 833 (1968) said: * * * [T]he cases have held that federal jurisdiction is established only when the petitioner has alleged that there was a total absence of evidence to support a guilty verdict. See, e. g. Deham v. Decker, 361 F.2d 477 (C.A. 5, 1966), and Edmondson v. Warden, Maryland Penitentiary, 335 F.2d 608, 609 (C.A. 4, 1964). To permit a federal court acting upon a petition for a writ of habeas corpus to inquire further" }, { "docid": "10793323", "title": "", "text": "of second degree murder (N.J.S. 2A:113-2) on June 6, 1968 and sentenced on June 28, 1968 to 15 to 18 years in prison. He is now confined in the New Jersey State Prison. The Appellate Division affirmed in an unpublished opinion dated September 30, 1970. Certification was denied. 57 N.J. 210, 271 A.2d 5 (1970). The Supreme Court of the United States denied certiorari. 401 U.S. 981, 91 S.Ct. 1216, 28 L.Ed.2d 332 (1971). Petitioner has exhausted his state remedies. 28 U.S.C.A. § 2254; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). The petition has been referred pursuant to our General Rule 40E(3). Petitioner contends I That he was denied rights guaranteed by the Fifth, Sixth and Fourteenth Amendments because the trial court did not instruct the jury that it could find him guilty of voluntary manslaughter; II That there was insufficient evidence to convict him of second degree murder; III That the trial court should have granted a mistrial because of the publicity which attended the assassination of Senator Robert Kennedy; IV That admission in evidence of certain photographs was improper; and V That the prosecutor made improper comments during trial. I “An allegation of impropriety in the charge to the jury entitles [petitioner] to federal habeas corpus relief only where it is shown that it constituted fundamental error resulting in a deprivation of due process.” United States ex rel. Chase v. Rundle, 266 F.Supp. 487, 490 (M.D.Pa.1967), cert. den. 390 U.S. 928, 88 S.Ct. 865, 19 L.Ed.2d 991; Wade v. Yeager, 245 F.Supp. 62 (D.N.J.1964). On the record before us it is apparent that this contention is not equitable to a “fundamental error resulting in a deprivation of due process.” II Petitioner’s second contention is also lacking in merit. The test for habeas corpus relief is not whether the verdict was against the weight of the evidence but whether there was any evidence to support it. United States ex rel. Mallory v. Myers, 240 F.Supp. 373 (E.D.Pa.1964), affirmed 343 F.2d 912 (3 Cir. 1965), cert. den. 381 U.S. 943, 85 S.Ct. 1781, 14" }, { "docid": "3193314", "title": "", "text": "erroneously or incorrectly.” Id. at 1522(Scalia, J. concurring). III. DISCUSSION I. Petitioner was denied due process of law by the denial of his motion for directed verdict on the charge of first degree murder and his conviction of second degree murder based on insufficient evidence. Petitioner first claims that there was insufficient evidence of premeditation and deliberation to submit the original first degree murder charge to the jury. Petitioner alleges that the trial court therefore erred in denying his motion for directed verdict. Petitioner further alleges that there was insufficient evidence to convict him of the crime of second degree murder. A. Standard of Review. A habeas court, “reviews claims that the evidence at trial was insufficient for a conviction by asking ‘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.’ ” Scott v. Mitchell, 209 F.3d 854, 885 (6th Cir.2000); cert. den. 531 U.S. 1021, 121 S.Ct. 588, 148 L.Ed.2d 503 (2000) (citing to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Because a claim of insufficiency of the evidence presents a mixed question of law and fact, this Court must determine whether the state court’s application of the Jackson standard was reasonable. Matthews v. Abramajtys, 92 F.Supp.2d 615, 632 (E.D.Mich.2000) (citations omitted). B. The individual claims. 1.The failure to direct a verdict on the first degree murder charge. Petitioner first claims that the trial court erred in denying his motion for a directed verdict and permitting the first degree murder charge to be submitted to the jury for their consideration. However, petitioner was convicted at trial of the lesser included offense of second degree murder and therefore acquitted of the higher first degree murder charge. The submission to a jury of a criminal charge constitutes harmless error where the habeas petitioner is acquitted of that charge. Daniels v. Burke, 83 F.3d 760, 765 fn. 4 (6th Cir.1996) (internal citations omitted). ■ Moreover, there was sufficient evidence of premeditation and deliberation to" }, { "docid": "3062280", "title": "", "text": "that the evidence, as presented, was insufficient to support the verdict of first degree murder. This court follows established procedures which make it clear that an inquiry into the sufficiency of the evidence is not within the proper functions of a federal court when reviewing a state conviction by way of habeas corpus. Our inquiry, based upon the records before the court, is one which only considers whether there was any evidence to support the verdict, not the sufficiency of such evidence. The district court in United States ex rel. Simmons v. Commonwealth of Pa., 292 F.Supp 830, 833 (1968) said: * * * [T]he cases have held that federal jurisdiction is established only when the petitioner has alleged that there was a total absence of evidence to support a guilty verdict. See, e. g. Deham v. Decker, 361 F.2d 477 (C.A. 5, 1966), and Edmondson v. Warden, Maryland Penitentiary, 335 F.2d 608, 609 (C.A. 4, 1964). To permit a federal court acting upon a petition for a writ of habeas corpus to inquire further than this into allegations challenging the sufficiency of the evidence presented at the state criminal trial, would be to improperly convert the federal court into a substitute for a state appellate court. See, e. g. United States ex rel. Bower v. Banmiller, 232 F.Supp. 627, 628-629 (E.D.Pa., 1964). This court has followed this procedure in Wheeler v. Peyton, 287 F.Supp. 930, 931 (W.D.Va., 1968) and Cooper v. Peyton, 295 F.Supp. 21, 23 (W.D.Va., 1968). Also, the Fourth Circuit Court of Appeals in Grundler v. North Carolina, 283 F.2d 798, 802 (1960) expressed a similar concept. * * * [Njormally, the admissibility of evidence, the sufficiency of evidence, and instructions to the jury in state trials, are matters of state law and procedure not involving federal constitutional issues. It is only in circumstances impugning fundamental fairness or infringing specific constitutional protections that a federal question is presented. The role of a federal habeas corpus is not to serve as an additional appeal. In light of the above, the court concludes that the record amply demonstrates that" }, { "docid": "724337", "title": "", "text": "only-attempt at collateral attack in the state court has been his petition for a writ of habeas corpus in the forum of his custody rather than through the post-conviction statute in the forum of his sentence. We think this interpretation a sound one and avoids any unnecessary collision with the questionable dicta found in State v. Reichel, supra. Judge Urbom has written an authoritative and soundly reasoned opinion rejecting the petitioner’s jurisdictional claim. We adopt his reasoning and affirm the denial to this claim. See Robinson v. Wolff, 349 F.Supp. 514 (D.C.Neb.1972). We likewise reaffirm his finding that the state record was not void of sufficient evidence to convict the petitioner of the first degree murder as charged. No. 72-1390 Subsequent to the district court’s dismissal, petitioner filed another habeas corpus petition. In this petition Robinson alleges that he is claiming a broader basis of attack than he argued in his original petition. He now asserts that there was insufficient evidence proved to sustain a conviction for any crime and that the trial court erred in failing to sustain a motion for acquittal. Judge Urbom dismissed this petition as being premised on the same ground raised in the first petition. In disposing of the claim in his first opinion the district judge limited his discussion to whether there was sufficient poof of premeditation to sustain a conviction of first degree murder. The court’s finding that there was sufficient proof to sustain a conviction for first degree murder adequately covers the alleged new ground of the second complaint. We do not understand Thompson v. The City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), relied upon by the petitioner, to justify federal review of a state court record to ascertain whether there exists sufficient evidence to make a prima facie case for a jury. The question of sufficiency of evidence depends upon state law and not the federal constitution. See Faust v. State of North Carolina, 307 F.2d 869 (4 Cir. 1962). The principle announced in the Thompson decision relates to a ease where the record is" }, { "docid": "966419", "title": "", "text": "trial leaves us with a firm conviction that Judge Ryan correctly held that there was a deliberate bypass of the state procedure for questioning the voluntariness of the confession. Accordingly, an evidentiary hearing in the district court as to whether there was a deliberate bypass was not required and Terry was properly barred from questioning the voluntariness of his confession in the instant federal habeas corpus proceeding. Henry v. Mississippi, 379 U.S. 443, 450-52 (1965); Fay v. Noia, 372 U.S. 391, 439 (1963); United States ex rel. Cruz v. LaVallee, 448 F.2d 671 (2 Cir. 1971), cert. denied, 406 U.S. 958 (1972); United States ex rel. Schaedel v. Follette, 447 F.2d 1297, 1298-1301 (2 Cir. 1971); United States ex rel. Bruno v. Herold, 408 F.2d 125, 128-29 (2 Cir. 1969), cert. denied, 397 U.S. 957 (1970). Furthermore, Judge Lumbar d’s careful and reasoned analysis of the rationale for the bypass rule earlier this term in Cruz simplifies our task here. We therefore shall limit ourselves to considering the application of that rule to the facts of the instant case. Essentially, it was the deliberate and consistent strategy of Terry’s counsel at his state murder trial not only not to question the voluntariness of his confession but to use it affirmatively to support Terry’s testimony of lack of any premeditated intent to kill. This led to his acquittal on the charge of common law first degree murder, one element of which is premeditation. He admitted that he killed Mrs. Clegg and that he went to her room with the intent of robbing her. He denied any premeditated intent to kill her and stressed that he had had too much to drink before he strangled her. In short, without ever claiming that his confession was not voluntary, his astute trial counsel stressed that, although it established that Terry had committed a crime (which the other evidence more than sufficiently established in any event), portions of the confession were exculpatory of the crime of premeditated first degree murder. On the basis of these portions of the confession, it was reasonable for counsel to" }, { "docid": "2793823", "title": "", "text": "OPINION OF THE COURT PER CURIAM: Before us is an appeal from the district court’s denial of a writ of habeas corpus. Represented by counsel, the appellant in 1949 entered a guilty plea to a general charge of murder before a panel of three judges which made a finding of first degree murder and imposed a life sentence. He took no direct appeal from the finding and the sentence. Seventeen years later, contending that his guilty plea had been unlawfully induced by a coerced confession, appellant filed a petition under the Pennsylvania Post Conviction Hearing Act. Testimony from both appellant and his trial counsel was received at an evidentiary hearing. The state court denied the petition, and the denial was affirmed by the Pennsylvania Supreme Court, Commonwealth v. Baity, 428 Pa. 306, 237 A.2d 172 (1968). Appellant then filed a habeas corpus petition in the district court, and a second evidentiary hearing was held at which the appellant and trial counsel again testified. The district court denied the petition. We find no merit in any of the contentions raised in this appeal. Although there was no on-the-record colloquy at the taking of the plea, we have previously held that the rule of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) will not be applied retroactively. United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3 Cir. 1969); United States ex rel. Fear v. Rundle, 423 F.2d 55 (3 Cir. 1970). In United States ex rel. Grays v. Rundle, 428 F.2d 1401 (3 Cir. 1970), we held that the relator has the burden of showing that his guilty plea was not entered as an intelligent act “done with sufficient awareness of the relevant circumstances and likely consequences.” Our independent review of the records of the degree of guilt hearing and the two evidentiary hearings convinces us that appellant did not meet this burden. The Supreme Court has recently ruled that a competently counseled defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a hearing on" }, { "docid": "7411863", "title": "", "text": "Court determined in O’Dell v. Netherlands, 521 U.S. 151, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997) that the rule set out in Simmons requiring a capital defendant to be permitted to inform his sentencing jury that he is parole ineligible if the prosecution argues that he presents a future danger, was new within the meaning of Teague v. Lane, supra, and thus not subject to retroactive application. It therefore appears that there was no such absolute requirement that the jury be instructed on parole at the time of Mr. Pe-terkin’s trial. Accordingly, we find no error in the trial court’s failure to instruct the jury on this point or in either trial or appellate counsel’s performance on petitioner’s behalf. The request for habeas relief on this basis is denied. 6. Petitioner was denied his Fifth, Eighth and Fourteenth Amendment rights because there was insufficient evidence that Petitioner robbed John Smith, insufficient evidence that Petitioner committed murder in the course of robbing John Smith and insufficient evidence properly admitted at trial to convince a rational jury that Petitioner was guilty of first degree murder beyond a reasonable doubt. Petitioner next asserts that the evidence presented at trial was insufficient to support his convictions for robbery and murder nor was it sufficient to sustain the jury’s finding of the sole aggravating circumstance (i.e. murder in the course of robbery) supporting the death penalty. A claim of insufficiency of the evidence places a very heavy burden on the party seeking to challenge a verdict. United States v. Cooper, 121 F.3d 130, 133 (3rd Cir.1997). In evaluating the sufficiency of the evidence to sustain a conviction, the evidence at trial is considered in the light most favorable to the government. U.S. v. Veksler, 62 F.3d 544, 551 (3rd Cir.1995). It is not for a reviewing court to weigh the evidence or to determine the credibility of witnesses; the verdict of a jury must be sustained if there is substantial evidence to support it. U.S. v. Schramm, 75 F.3d 156, 159 (3rd Cir.1996), quoting Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457," }, { "docid": "923662", "title": "", "text": "Smiley v. California, 442 F.2d 1026 (9th Cir. 1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 718, 30 L.Ed.2d 732 (1972), we see no reason for such remand where, as here, there is no suggestion, either in the record or in respondent’s brief, of a “deliberate bypass.” Accord, United States ex rel. Macon v. Yeager, 476 F.2d 613, 614 — 15 n. 2 (3rd Cir.), cert. denied, 414 U.S. 855, 94 S.Ct. 154, 38 L.Ed.2d 104 (1973); see Blaylock v. Fitzharris, 455 F.2d 462, 464 (9th Cir.), cert. denied, 409 U.S. 948, 93 S.Ct. 286, 34 L.Ed.2d 218 (1972) (evidentiary hearing if “genuine” issue of deliberate bypass). We recognize that constitutional error in using pre-trial silence to impeach trial testimony may on occasion be harmless error. Rothschild, supra, Holland, supra, 360 F.Supp. at 913; see Glinsey, supra, 491 F.2d at 343-44. See generally Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). However, to find harmlessness beyond a reasonable doubt we would have to conclude that, absent the cross-examination and closing argument, “no juror could have entertained a reasonable doubt” as to petitioner’s guilt. Matos, supra, 444 F.2d at 1073. We feel that we cannot in good conscience make such a finding. First, evidence of petitioner’s guilt was far from being overwhelming, Glinsey, supra, 491 F.2d at 344, United States v. Blakemore, 489 F.2d 193, 196 (6th Cir. 1973), United States v. Davis, 459 F.2d 167, 172 (6th Cir. 1972). While we do not agree with petitioner’s claim on appeal that the evidence against him “was so lacking in probative or evidentiary value as to deprive him of his due process rights,” it must be recognized that the robbery victim’s line-up identification of petitioner was far from conclusive, and that the only other inculpatory evidence was the testimony of an acquaintance that he saw petitioner near the scene of the robbery and murder within fifteen or twenty minutes thereof. Second, evidence of petitioner’s pre-trial silence could easily have been prejudicial. “The danger is that the jury, is likely to assign much more weight to the defendant’s" }, { "docid": "12632841", "title": "", "text": "(1970). Kirkpatrick’s final Eighth Amendment claim is that electrocution, the method chosen by Louisiana to execute those sentenced to death, constitutes cruel and unusual punishment. Kirkpatrick contends that death by electrocution involves a period of agonizing pain such that its use “would inflict wanton and unnecessary torture and torment upon him____” Although it appears that the proper standard for determining whether a particular method chosen by a state to carry out its death penalty is unconstitutionally cruel turns on whether the method involves unnecessary or wanton infliction of pain, see Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 2924-25, 49 L.Ed.2d 859 (1976); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947), it is not necessary to decide that issue. Whatever standard is properly applied, Kirkpatrick could not meet it for he has proferred nothing more than conclusory allegations. See Moore v. Maggio, 740 F.2d 308, 322 (5th Cir.1984); Prejean v. Blackburn, 743 F.2d 1091 at 1099 (5th Cir.1984). D. Fourteenth Amendment Claims 1. Sufficiency of Evidence Kirkpatrick challenges both his conviction and sentence on the ground that the evidence adduced at his trial was insufficient to sustain his conviction and sentence. The standard for reviewing claims by federal habeas corpus petitioners of insufficient evidence is whether a rational trier of fact might have found that each essential element of the crime was proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Whitmore v. Maggio, 742 F.2d 230, 231 (5th Cir.1984). a. Guilt Kirkpatrick contends that his conviction of first degree murder cannot stand because (1) “no evidence was presented to the jury to meet the elements of armed or simple robbery ... ”; (2) “there was no proof that the killing occurred in the course of an armed or simple robbery”; and (3) “no evidence was presented to support the conclusion of which of the defendants had shot the victim.” First degree murder is defined in Louisiana as the killing of a human being: (1) When the offender has a" }, { "docid": "6369257", "title": "", "text": "79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); United States ex rel. Dale v. Williams, 459 F.2d 763 (3rd Cir. 1972). But the record of the instant case demonstrates that the full extent of such promises was brought to the attention, of the jury both on direct and on cross examination. That the jury ultimately chose to reject the defense attack on the credibility of Smith’s testimony does not raise an issue for a federal court on habeas jurisdiction. Petitioner further contends that he was denied due process by several rulings as to the conduct of the trial, including the failure to sequester jurors, the permission granted to a detective to remain at counsel table during trial after petitioner alleged that he might be called as a defense witness (he was not). Neither of these rulings violated any constitutionally secured right. See Young v. Alabama, 443 F.2d 854 (5th Cir. 1971), cert. denied, 405 U.S. 976, 92 S.Ct. 1202, 31 L.Ed.2d 251 (1972); United States ex rel. Mayberry v. Yeager, 321 F.Supp. 199 (D.N.J.1971); United States v. Weinberg, 345 F.Supp. 824 (E.D.Pa.1972), modified on other grounds, 478 F.2d 1351 (3rd Cir. 1972), cert. denied, 414 U.S. 1005, 94 S.Ct. 363, 38 L.Ed.2d 242 (1973); United States v. Rollins, 522 F.2d 160 (2nd Cir. 1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1122, 47 L.Ed.2d 324 (1976). Petitioner’s next assertion of error is the admission into evidence of the expert testimony from the polygrapher who examined Craig Smith. Such evidence is still debated in a variety of jurisdictions, see United States v. Alexander, 526 F.2d 161 (8th Cir. 1975); United States v. Oliver, 525 F.2d 731 (8th Cir. 1975), cert. denied, 424 U.S. 973, 96 S.Ct. 1477, 47 L.Ed.2d 743 (1976); United States v. Demma, 523 F.2d 981 (9th Cir. 1975). New Jersey permits such evidence to be introduced upon the knowing, voluntary and intelligent stipula tion of both parties, State v. McDavitt, 62 N.J. 36, 297 A.2d 849 (1972). Here the record discloses just such a voluntary, knowing and intelligent stipulation on the part of petitioner; see Tr. (Motion Hearing) 29," }, { "docid": "943416", "title": "", "text": "Apparently for this reason, a copy of the charge is not part of the record before this Court. . Allen v. Perini, 424 F.2d 134, 138 (6th Cir., 1970) ; accord, United States ex rel. Gallagher v. Brierley, 286 F.Supp. 773, 774 (E.D.Pa.1968). See also, Hawkins v. Bennett, 423 F.2d 948, 951 (8th Cir. 1970). That the burden of sustaining the admissibility of challenged evidence lies with the Government once the primary illegality has been established at a suppression hearing or trial, see, 3 G. Wright, Federal Practice and Procedure, Criminal § 677 at 138 (1969), is not significant here, since the isue in a habeas corpus case is- not whether the evidence passes muster when measured against the appropriate evidentiary rule. Habeas corpus in the federal courts is a remedy grounded on a federal statute, 28 U.S.C. § 2254 (Supp. V 1970), for relief from violations of the Constitution of the United States. Some federal courts look to state law to determine the party who must carry the burden. See e. g., Webb v. Beto, 415 F.2d 433, 436 (5th Cir. 1969), cert, denied, 396 U.S. 1019, 90 S.Ct. 587, 24 L.Ed.2d 511 (1970). However, even if Pennsylvania law does control such aspect of this federal habeas corpus action, Pennsylvania also places the burden of proof on the habeas petitioner. Commonwealth ex rel. Harbold v. Myers, 427 Pa. 117, 233 A.2d 261 (1967) (because Escobedo is not retroactive, a prisoner alleging coercion must demonstrate confessions were involuntary) ; Commonwealth ex rel. Storeh v. Maroney, 416 Pa. 55, 204 A.2d 263 (1964) (petitioner must show violation of constitutional rights). Also, the burden of proof does not shift merely because the petitioner is challenging the voluntariness of his confession. United States ex rel. Sabella v. Follette, 432 F.2d 572, 575 (2d Cir. 1970) ; Jones v. Russell, 396 F.2d 797 (6th Cir. 1968). . Counsel for petitioner has cited to us footnote 8 of WMteley, supra, which states that “an otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the af-fiant when he sought the warrant but not" }, { "docid": "18588012", "title": "", "text": "95 S.Ct. 1748, 44 L.Ed.2d 317 (1975); Picard Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); U. S. ex rel. Kidd v. Commonwealth of Pennsylvania, 453 F.2d 247 (3d Cir. 1971); U. S. ex rel. Winsett v. Anderson, 320 F.Supp. 784 (D.Del.1972), aff’d 456 F.2d 1197 (3d Cir. 1972). Moreover, in determining whether exhaustion has occurred, it is necessary for the federal courts to determine whether any state remedies are available. See, U. S. ex rel. Wilkins v. Banmiller, 325 F.2d 514 (3d Cir. 1963), cert. denied, 379 U.S. 847, 85 S.Ct. 87, 13 L.Ed.2d 51 (1964). Respondents have argued that petitioners still have an available state remedy in the form cf Superior Court Criminal Rule 35(a) which establishes Delaware’s post-conviction collateral relief procedure and is, in essence, a state habeas corpus procedure. However, where the state Supreme Court has already ruled on a particular point raised in a direct appeal by a state prisoner, the petitioner will ordinarily be deemed to have exhausted his available state remedies. U. S. ex rel. Dyton v. Ellingsworth, 306 F.Supp. 231, 232 (D.Del.1969). See, Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, reh. denied 345 U.S. 946, 73 S.Ct. 827, 97 L.Ed. 1370 (1953). With respect to petitioners’ effective assistance of counsel claim, there is no question but that the Delaware Supreme Court heard and resolved that claim adversely. While that would ordinarily be sufficient for exhaustion purposes, the factual context of this particular claim requires that petitioners first take advantage of their opportunities for an evidentiary hearing pursuant to Superior Court Rule 35(a). See, Wright & Sofaer, “Federal Habeas Corpus for State Prisoners: The Allocation of Fact-Finding Responsibility,” 75 Yale L.J. 895, 903 (1966). Cf. Case v. Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965). First, the denial of a continuance is ordinarily a matter within the discretion of a trial judge, Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 84 L.Ed. 377 (1940), and can only transgress a constitutionally protected right in extreme cases. See, Franklin v. South Carolina," }, { "docid": "14982829", "title": "", "text": "MEMORANDUM AND ORDER JOHN MORGAN DAVIS, District Judge. Before the Court is a petition for a writ of habeas corpus. After having been indicted for murder in the Court of Oyer and Terminer, Philadelphia, the relator initially entered a plea of not guilty at his arraignment. At the time of trial on April 12, 1965, however, he changed his plea to guilty, with certification by the District Attorney that the crime did not rise higher than murder in the second degree. In accordance with the practice of the Commonwealth, the trial judge then conducted a degree-of-guilt hearing. At the conclusion of the hearing, the relator was adjudged guilty of murder in the second degree. A sentence of ten to twenty years imprisonment was imposed. No appeal was taken. On March 15,1968, a Post Conviction petition was dismissed, after an evidentiary hearing. An appeal was taken to the Pennsylvania Supreme Court, which affirmed the Order of the Post Conviction Judge, on January 28, 1969. Commonwealth v. Cottrell, 433 Pa. 177, 249 A.2d 294. State remedies have been exhausted. The Post Conviction hearing which was conducted in March of 1968 permitted the relator and his counsel to comprehensively set forth their evidence in support of the five allegations of error which are presently being asserted. Accordingly, there is no requirement for an additional evidentiary hearing. See e. g. United States ex rel. Ackerman v. Russell, 388 F.2d 21 (3rd Cir. 1968); United States ex rel. Darrah v. Brierley, 290 F. Supp. 960 (E.D.Pa.1968). I. The relator first contends that the apprehending police elicited a statement from him without first having given the requisite “warnings”. Initially, we observe that the relator’s trial commenced on April 12, 1965. The only “warnings” to which the relator would be entitled are in accordance with Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Briefly, this decision held that where a police investigation has progressed from the general investigatory stage to the accusatorial stage, the accused must be afforded the opportunity to consult with his counsel, and must be warned of his right" }, { "docid": "22204351", "title": "", "text": "being excessively lenient. The question that respondent has standing to raise is whether his trial was fairly conducted. The trial judge, the New York appellate courts, the Federal District Court, and the United States Court of Appeals all agreed that the record contains adequate evidence of his guilt. These courts also agreed that the proceedings leading up to respondent’s conviction were conducted fairly. Apart from the acquittal of Robinson, this record discloses no constitutional error. Even assuming that this acquittal was logically inconsistent with the conviction of respondent, respondent, who was found guilty beyond a reasonable doubt after a fair trial, has no constitutional ground to complain that Robinson was acquitted. Reversed. They were indicted for robbery in the first degree, robbery in the second degree, possession of a dangerous weapon, grand larceny in the third degree, and burglary in the second degree. The grand larceny count was dismissed at the sentencing stage as a lesser included count within robbery in the second degree. “The next argument set forth is directed at the sufficiency of the evidence presented in petitioner’s state court criminal trial. Such an allegation is beyond the scope of federal habeas corpus review and does not rise to the level of a constitutional infringement, United States ex rel. Nersesian v. Smith, 418 F. Supp. 26, 27 (SDNY 1976) unless ‘there was no proof whatever of the crime charged.’ United States ex rel. Terry v. Henderson, 426 F. 2d 1125, 1131 (2d Cir. 1972). I have reviewed the trial transcript. Any allegation that the trial record is devoid of evidence must be rejected as are Petitioner’s Points IV, VI, VII, and VIII which, when liberally read, are variations on the claim of insufficiency of the evidence.” App. to Pet. for Cert. A-12. The District Court’s ruling predated this Court’s decision in Jackson v. Virginia, 443 U. S. 307 (1979). The Court of Appeals held, however, that the insufficiency of the evidence claim is without merit even under the test of Jackson. 643 F. 2d 86, 90, n. 2 (CA2 1981). The Court of Appeals concluded that “when verdicts" }, { "docid": "7411864", "title": "", "text": "that Petitioner was guilty of first degree murder beyond a reasonable doubt. Petitioner next asserts that the evidence presented at trial was insufficient to support his convictions for robbery and murder nor was it sufficient to sustain the jury’s finding of the sole aggravating circumstance (i.e. murder in the course of robbery) supporting the death penalty. A claim of insufficiency of the evidence places a very heavy burden on the party seeking to challenge a verdict. United States v. Cooper, 121 F.3d 130, 133 (3rd Cir.1997). In evaluating the sufficiency of the evidence to sustain a conviction, the evidence at trial is considered in the light most favorable to the government. U.S. v. Veksler, 62 F.3d 544, 551 (3rd Cir.1995). It is not for a reviewing court to weigh the evidence or to determine the credibility of witnesses; the verdict of a jury must be sustained if there is substantial evidence to support it. U.S. v. Schramm, 75 F.3d 156, 159 (3rd Cir.1996), quoting Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). A verdict will only be overturned if no reasonable juror could accept the conclusion of the defendant’s guilt beyond a reasonable doubt. Id. In application of the foregoing to the case at hand, we find that, in light of the instances of prosecuto-rial misconduct, trial counsel ineffectiveness and trial error, we cannot now find from the evidence properly admitted of record that the jury’s findings that Petitioner was guilty of the robbery of John Smith and of murdering him in the course of that robbery are supported by sufficient evidence. So saying, we would grant Petitioner habeas relief on this ground also. 7. Petitioner is entitled to habeas relief because the Commonwealth failed to provide his counsel with exculpatory material under Brady v. Maryland, failed to give adequate notice of its intention to seek the death penalty and because the death penalty was not proportionate in this case. Petitioner finally argues that his constitutional rights were violated entitling him to the issuance of a writ of habeas corpus by virtue" }, { "docid": "9579619", "title": "", "text": "“cause and prejudice” for his default and, thus, the claim is procedurally barred. However, to complete the record, on the merits, the claim is denied. The petitioner argues that “[a] review of the trial transcript would reveal that there was an insufficient quantum of evidence to support Mr. Rustici’s conviction on” the charge of Second Degree Murder on a theory of depraved indifference to human life. As with other grounds for relief raised in this petition, a petitioner who challenges the sufficiency of the evidence supporting his conviction “bears a heavy burden.” United States v. Griffith, 284 F.3d 338, 348 (2d Cir.2002) (citing United States v. Velasquez, 271 F.3d 364, 370 (2d Cir.2001)). To obtain habeas corpus relief, the Court must find that, when viewing the evidence most favorably to the prosecution, no rational trier of fact could find guilt beyond a reasonable doubt. Farrington v. Senkowski 214 F.3d 237, 240-41 (2d Cir.2000) (citing Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In addition, the Court must defer to the jury’s determination of the weight given to conflicting evidence, witness credibility, and inferences drawn from the evidence. United States v. Vasquez, 267 F.3d 79, 90-91 (2d Cir.2001) (citing Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Payton, 159 F.3d 49, 56 (2d Cir.1998)). A guilty verdict may not be disturbed if the jury has resolved these issues in a reasonable manner. See id. The Court’s “inquiry does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit.” Herrera v. Collins, 506 U.S. 390, 402, 113 S.Ct. 853, 861, 122 L.Ed.2d 203 (1993). A federal habeas court must “credit every inference that could have been drawn in the state’s favor ... whether the evidence being reviewed is direct or circumstantial.” Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.1988). Applying the above standard, the Court finds that the evidence amply supports the petitioner’s Second Degree Murder conviction. As" }, { "docid": "15145333", "title": "", "text": "counsel took an appeal. His conviction was affirmed from the bench by the Oregon State Court of Appeals on June 21, 1971 (485 P.2d 1253), and by the Supreme Court of Oregon in a careful 12-page opinion on November 5, 1971 (490 P.2d 491). Paragraph 11(a) refers to the “Allen Charge,” which we will consider later. Paragraph 11(b) (failure to reinstruct burden of proof on state): This was not raised on appeal in the State Court, but could have been. The United States Magistrate (to which the petition for habeas corpus was referred) found it to be without merit: “It was not necessary for the trial judge to reinstruct the jury on the burden of proof. Jury instructions must be considered as a whole, United States v. Tocki, 469 F.2d 655 (9th Cir. 1972), and an examination of the entire set of instructions given to the jury shows that the trial judge adequately informed the jury of the state’s burden of proof.” (C.T. p. 15, lines 10-16). See also United States v. Marshall, 532 F.2d 1279 (9th Cir. 1976). Paragraph 11(c): The insufficiency of the evidence, according to petitioner and appellant, was raised by his counsel before the Oregon Supreme Court. That court states that at oral argument, the Public Defender, representing petitioner and appellant, “conceded . that the state’s evidence was sufficient to support the verdict.” Nevertheless, the Oregon Supreme Court examined on its own the entire record and found “there was ample testimony, if believed by the jury, to corroborate the testimony of the complaining witness.” (State v. Marsh, p. 492, and particularly Note l). When this 11(c) issue was passed upon by the United States Magistrate, he found it to be without merit. “An examination of the record shows that there was sufficient credible evidence for the jury to find the petitioner guilty of the offense (C.T. p. 14). Habeas Corpus relief will be granted only if the record is totally devoid of such evidence. Freeman v. Stone, 444 F.2d 113 (9th Cir. 1971).” Paragraph 11(d) asserts that the trial judge “switched the burden of proof” when" }, { "docid": "2941314", "title": "", "text": "AINSWORTH, Circuit Judge: Appellant, an Alabama state prisoner, appeals from the District Court’s denial of habeas relief to set aside a 1966 conviction for second-degree murder. This is the second time the matter is before us. Following an unsuccessful appeal by Young to the Alabama Supreme Court, Young v. State, 283 Ala. 676, 220 So.2d 843 (1969), which considered and rejected all of the claims which appellant presents here, he sought habeas relief in the District Court which denied the writ. We remanded for considera-' tion on the merits because of the District Court’s erroneous conclusion that appellant had not exhausted his state remedies. Young v. State of Alabama, 5 Cir., 1970, 427 F.2d 177. On remand the District Court conducted a hearing and denied the relief sought. We affirm. In his habeas petition, appellant asserted as grounds for his release the following: 1. Improper jury instructions; 2. Insufficiency of the evidence; and 3. Unconstitutionality of an Alabama state statute [Title 30, Section 97(1) (1958)] under which the jury was allowed to separate and disperse overnight during the course of his trial. In denying the writ, the District Court made no findings relative to the first two claims asserted by petitioner. Young, on appeal, reasserts all of the alleged violations and additionally contends that the court erred in failing to make findings of fact on the issues of improper jury instructions and insufficiency of the evidence. Unless there is a clear showing that the errors complained of were so gross or the trial was so fundamentally unfair, habeas corpus will not lie to set aside a conviction on the basis of improper instructions, McDonald v. Sheriff of Palm Beach County, Florida, 5 Cir., 1970, 422 F.2d 839; Murphy v. Beto, 5 Cir., 1969, 416 F.2d 98; Gomez v. Beto, 5 Cir., 1968, 402 F.2d 766. Nor is alleged insufficiency of evidence reviewable by habeas corpus in federal courts. Summerville v. Cook, 5 Cir., 1971, 438 F.2d 1196; Fulford v. Dutton, 5 Cir., 1967, 380 F.2d 16. These alleged violations were presented to the Alabama Supreme Court and found to be" } ]

[ { "docid": "1274457", "title": "", "text": "were “reasonable grounds to believe” that the offense was being committed. The statute relied on is not sufficient to bridge the gap between private and State action. Security employees are not thereby made State officers nor are they granted the authority to detain suspected shoplifters. Rather, the statute permits the assertion of a defense to certain causes of action founded upon State law. This “shopkeepers’ privilege” is insufficient to transform defendants’ conduct into acts under color of State law and to vest a federal court with jurisdiction over the subject matter. See Battle v. Dayton-Hudson Corp., 399 F.Supp. 900 (D.Minn.1975); Weyandt v. Mason’s Stores, Inc., 279 F.Supp. 283 (W.D.Pa.1968). Plaintiffs have failed to allege concerted activity with State officials which might make the security officers liable if they had been “willful participant^] in joint activity with the State or its agents,” United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966). With respect to defendant Gimbels, the action is also dismissed on the ground that vicarious liability may not be imposed under § 1983. Draeger v. Grand Central, Inc., 504 F.2d 142 (10 Cir. 1974). Accordingly, defendants’ motion to dismiss the complaint is granted. SO ORDERED. . Jurisdiction is said to be conferred under 28 U.S.C. § 1343. All parties being residents of New York, there is no diversity jurisdiction under 28 U.S.C. § 1332. . DeCarlo v. Joseph Horne & Co., 251 F.Supp. 935 (W.D.Pa.1966), is not to the contrary. There the district court held that a State statute granted a store detective authority to make a legal arrest, not present at common law." } ]

[ { "docid": "23119077", "title": "", "text": "The initial barrier to appellant’s relief from Charter is that the actions she questions are actually the actions of Charter’s employees, not the actions of the hospital itself. The complaint alleges Mrs. Harvey was placed on a locked ward and given medication against her will. The hospital organization did not take these steps, hospital employees did. A defendant cannot be held liable under section 1983 on a respondeat superi- or or vicarious liability basis. Monell v. Department of Social Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Monell involved a municipal corporation, but every circuit court to consider the issue has extended the holding to private corpora tions as well. See Lux v. Hansen, 886 F.2d 1064, 1067 (8th Cir.1989) (private mental health center); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (department store); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982) (security guard employer); see also Jones v. Preuit & Mauldin, 851 F.2d 1321, 1325 (11th Cir.1988) (en banc), vacated on other grounds, 489 U.S. 1002, 109 S.Ct. 1105, 103 L.Ed.2d 170 (1989) (private defendants in 42 U.S.C. § 1983 actions should have at minimum same defenses available to public defendants). We believe the same holds true for Charter: the hospital cannot be faulted for the conduct of its employees. Even if Mrs. Harvey could attribute liability to Charter directly and not vicariously, she is unable to state a claim for section 1983 relief. A successful section 1983 action requires a showing that the conduct complained of (1) was committed by a person acting under color of state law and (2) deprived the complainant of rights, privileges, or immunities secured by the Constitution or laws of the United States. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156-57, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). Taking the factual allegations of Mrs. Harvey’s complaint as true, which we must do when reviewing motions to dismiss, Walker Process Equip, v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-75, 86 S.Ct. 347, 348-49, 15 L.Ed.2d 247 (1965), we see a" }, { "docid": "22902930", "title": "", "text": "be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at -, 114 S.Ct. at 1982-83. There is ample evidence of the reasonableness of Turner’s actions in regard to staffing at MDCDF: staffing levels were maintained consistent with the requirements of the Tennessee Corrections Institute and the American Corrections Association. Neither the faulty phone system, allegedly responsible for Street’s original argument with Harris, nor that argument itself, created a substantial risk of serious harm to Street. Even taking the facts and the inferences drawn from those facts in the light most favorable to Street, there are no genuine issues of fact as to whether Turner was deliberately indifferent to a substantial risk of serious harm to Stephen. C. There are genuine issues of fact only as to whether Stephen violated Street’s Eighth Amendment rights. There was no evidence presented that indicated that Stephen’s deliberate indifference to the risk of harm to Street (i.e., his failure to take action in light of Harris’ questions) was undertaken pursuant to any policy or custom of CCA or because of the inadequacy of Stephen’s training. Therefore, CCA’s only potential liability is vicarious liability for the actions of Stephen. A defendant cannot be held liable under section 1983 on a respondeat superior or vicarious liability basis. Monell v. Department of Social Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 ... (1978). Monell involved a municipal corporation, but every circuit to consider the issue has extended the holding to private corporations as well. See Lux v. Hansen, 886 F.2d 1064, 1067 (8th Cir.1989) (private mental health center); Iskander v. Village of Forest Park, 690 F.2d 126; 128 (7th Cir.1982) (department store); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982) (security guard employer); see also Jones v. Preuit & Mauldin, 851 F.2d 1321, 1325 (11th Cir.1988) (en banc); vacated on other grounds, 489 U.S. 1002, 109 S.Ct. 1105, 103 L.Ed.2d 170 ... (1989) (private defendants in 42 U.S.C. § 1983 actions should have at minimum same defenses available to" }, { "docid": "1556807", "title": "", "text": "law.” See Rojas v. Alexander’s Dep’t Store, Inc., 654 F.Supp. 856, 858 (E.D.N.Y.1986); Thompson v. McCoy, 425 F.Supp. 407, 410-11 (D.S.C.1976); cf. Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951) (private detective who held a Special Police Officer’s Card issued by the City of Miami held to be acting “under color of law,” even though employed by private corporation). Consequently, the Officers are subject to suit under § 1983. B. The Doctor In order to state a claim for relief against a private individual under § 1983, plaintiff must allege a conspiracy between the individual and those acting “under col- or of state law” to deprive plaintiff of his constitutionally protected interests. Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). The Supreme Court has made it clear that a defendant need not be a state agent for his actions to be actionable under § 1983. “Private persons, jointly engaged with state officials in the challenged action, are acting ‘under color’ of law for purposes of § 1983 actions.” Id. at 27-28, 101 S.Ct. at 186. Because plaintiff has alleged that the Doctor conspired with the Officers, who, for the reasons set forth above, were acting “under color of state law,” plaintiff has satisfied the requirement for maintaining a § 1983 action against this private defendant. C. The Hospital Plaintiff alleges that the Hospital is vicariously liable for the constitutional torts of its employees, the Officers and Doctor. While it is clear that vicarious liability may not be imposed under § 1983 upon a municipality, Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978), neither the Supreme Court nor the Second Circuit appear to have addressed directly the issue of whether a private corporate employer may be held liable under § 1983 on a respondeat superior theory. However, numerous courts in other jurisdictions have held that a corporate employer is not vicariously liable, relying on the reasoning of Monell. See, e.g., Iskander v. Village of Forest Park, 690 F.2d 126, 128-29" }, { "docid": "14574566", "title": "", "text": "The question before us is whether there is any evidence upon which Zayre could be found liable under § 1983. Initially, it is clear that Zayre’s liability may not be based merely on the employer-employee relationship between it and the store detective. “Section 1983 will not support a claim based on a respondeat superior theory of liability.” Polk Co. v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981). See also Powe v. City of Chicago, 664 F.2d 639, 649-51 (7th Cir. 1981); Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir. 1981); Chapman v. Pickett, 586 F.2d 22, 27 (7th Cir. 1978); Fulton Market Cold Storage Co. v. Cullerton, 582 F.2d 1071, 1083 (7th Cir. 1978), cert. denied, 439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979), disapproved on other grounds, Fair Assessment in Real Estate Ass’n v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981); McDonald v. Illinois, 557 F.2d 596, 601-02 (7th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 508, 54 L.Ed.2d 453 (1977); Adams v. Pate, 445 F.2d 105, 107 n.2 (7th Cir. 1971). See generally Annot. 51 A.L.R.Fed. 285 (1981). Moreover, just as a municipal corporation is not vicariously liable upon a theory of respondeat superior for the constitutional torts of its employees, Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978), a private corporation is not vicariously liable under § 1983 for its employees’ deprivations of others’ civil rights. Powell v. Shopco Laurel Co., 678 F.2d 504 (4th Cir. 1982); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10th Cir. 1974) (alternative holding); Estate of Iodice v. Gimbels, Inc., 416 F.Supp. 1054 (E.D.N.Y.1976); Weiss v. J. C. Penney Co., 414 F.Supp. 52 (N.D.Ill.1976). Contra Classon v. Shopco Stores, Inc., 435 F.Supp. 1186, 1187-88 (E.D.Wisc.1977) (misinterpreting, in our view, the significance of certain conclusory language in Adickes v. S. H. Kress and Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970), a case in which the vicarious liability issue appears not to" }, { "docid": "14574567", "title": "", "text": "(1977); Adams v. Pate, 445 F.2d 105, 107 n.2 (7th Cir. 1971). See generally Annot. 51 A.L.R.Fed. 285 (1981). Moreover, just as a municipal corporation is not vicariously liable upon a theory of respondeat superior for the constitutional torts of its employees, Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978), a private corporation is not vicariously liable under § 1983 for its employees’ deprivations of others’ civil rights. Powell v. Shopco Laurel Co., 678 F.2d 504 (4th Cir. 1982); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10th Cir. 1974) (alternative holding); Estate of Iodice v. Gimbels, Inc., 416 F.Supp. 1054 (E.D.N.Y.1976); Weiss v. J. C. Penney Co., 414 F.Supp. 52 (N.D.Ill.1976). Contra Classon v. Shopco Stores, Inc., 435 F.Supp. 1186, 1187-88 (E.D.Wisc.1977) (misinterpreting, in our view, the significance of certain conclusory language in Adickes v. S. H. Kress and Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970), a case in which the vicarious liability issue appears not to have been raised). In order to warrant submission of her case against Zayre to the jury, plaintiff had to show an “impermissible policy” or a “constitutionally forbidden” rule or procedure of Zayre, Polk Co. v. Dodson, supra, 454 U.S. at 326, 102 S.Ct. at 454, which was the “moving force of the constitutional violation.” Monell v. Department of Social Services, supra, 436 U.S. at 694, 98 S.Ct. at 2037. Even assuming that plaintiff proved that her detention by the store detective was without probable cause and invaded her civil rights, that single act of unconsti tutional conduct does not support the inference that the conduct was pursuant to an impermissible Zayre policy. See Powe v. City of Chicago, supra, 664 F.2d at 650. Indeed, the only link between Zayre’s policies and the store detective’s actions advanced by plaintiff is the conclusory testimony that he was acting in accordance with Zayre’s operating procedures pertaining to shoplifting suspects. This statement, however, is wholly insufficient to raise a triable issue of whether Zayre had an unconstitutional policy or" }, { "docid": "1556809", "title": "", "text": "(7th Cir.1982); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10 Cir.1974); Estate of Iodice v. Gimbels, Inc., 416 F.Supp. 1054, 1055 (E.D.N.Y.1976). I agree that there is no tenable reason to distinguish a private employer from a municipality. Thus, a private corporate employer may not be vicariously liable under § 1983. This is not to say that a private corporate employer is never liable under § 1983. Where a plaintiff alleges a conspiracy between the private employer and its employees who are acting “under color of state law,” a sufficient basis for potential liability exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-52, 90 S.Ct. 1598, 1604-05, 26 L.Ed.2d 142 (1970); Rojas v. Alexander’s Dep’t Store, Inc., 654 F.Supp. 856, 858 (S.D.N.Y.1987). A further basis for liability would arise if plaintiff alleged that it was the Hospital’s policy to have its security guards engage in coercive practices or its medical staff to decline medical services to arrested persons. Such a policy would satisfy the requirement that a plaintiff show that the institution is the driving force behind the constitutional violation. See Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981); Rojas v. Alexander’s Dep’t Store, Inc., 654 F.Supp. 856, 858-59 (S.D.N.Y.1987). Yet another basis for liability against the Hospital would exist if plaintiff alleged that the Hospital received funding from or was controlled by the state to such an extent that its activities constitute state action for purposes of § 1983. See Davidson, M.D. v. Yeshiva University, 555 F.Supp. 75, 79 (S.D.N.Y.1982). Because plaintiff has made no such allegations, and because there is no vicarious liability against a private corporate employer under § 1983, the action against the Hospital is dismissed. CONCLUSION For the reasons set forth above, defendants’ motion to dismiss is granted in part and denied in part. SO ORDERED. . Plaintiff seeks to have the Officers dismissed from their employment at the Hospital and to have the American Medical Association consider the Doctor's actions. ." }, { "docid": "22902931", "title": "", "text": "questions) was undertaken pursuant to any policy or custom of CCA or because of the inadequacy of Stephen’s training. Therefore, CCA’s only potential liability is vicarious liability for the actions of Stephen. A defendant cannot be held liable under section 1983 on a respondeat superior or vicarious liability basis. Monell v. Department of Social Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 ... (1978). Monell involved a municipal corporation, but every circuit to consider the issue has extended the holding to private corporations as well. See Lux v. Hansen, 886 F.2d 1064, 1067 (8th Cir.1989) (private mental health center); Iskander v. Village of Forest Park, 690 F.2d 126; 128 (7th Cir.1982) (department store); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982) (security guard employer); see also Jones v. Preuit & Mauldin, 851 F.2d 1321, 1325 (11th Cir.1988) (en banc); vacated on other grounds, 489 U.S. 1002, 109 S.Ct. 1105, 103 L.Ed.2d 170 ... (1989) (private defendants in 42 U.S.C. § 1983 actions should have at minimum same defenses available to public defendants). Harvey v. Harvey, 949 F.2d 1127, 1129-30 (11th Cir.1992). “[C]onsiderable conceptual difficulty would attend any search for the subjective state of mind of a government entity, as distinct from that of a government official.” Farmer, 511 U.S. at -, 114 S.Ct. at 1981. Summary judgment was properly granted to CCA. V. Street claims that CCA, Turner and Stephen are liable to him for the failure to exercise ordinary care under Tennessee law and that CCA is liable for the negligence of its agents and employees under Tennessee law. The district court had supplemental jurisdiction over Street’s state law claims. 28 U.S.C. § 1367. “District courts enjoy wide discretion in determining whether to retain supplemental jurisdiction over a state claim once all federal claims are dismissed....” Noble v. White, 996 F.2d 797, 799 (5th Cir.1993). As supplemental jurisdiction over Street’s state law claims was lacking after dismissal of the federal claims, the district court did not abuse its discretion in dismissing Street’s state law claims. On remand for consideration of Street’s claims against Stephen," }, { "docid": "14879403", "title": "", "text": "arise when a particular practice “is so persistent and widespread and so permanent and well settled as to constitute a custom or usage with the force of law.” Id. (internal quotation marks omitted). We have recognized, as has the Second Circuit, that the principles of § 1983 municipal liability articulated in Monell and its progeny apply equally to a private corporation that employs special police officers. Specifically, a private corporation is not liable under § 1983 for torts committed by special police officers when such liability is predicated solely upon a theory of respondeat superior. See Powell v. Shopco Laurel Co., 678 F.2d 504 (4th Cir.1982); Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406 (2d Cir.1990); see also Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir.1993) (concluding that private corporation is not subject to § 1983 liability under theory of respondeat superior regarding acts of private security guard employed by corporation); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (same). Rather, a private corporation is liable under § 1983 only when an official policy or custom of the corporation causes the alleged deprivation of federal rights. See Rojas, 924 F.2d at 408; Sanders, 984 F.2d at 976; Iskander, 690 F.2d at 128. In her second amended complaint, Austin primarily alleged in support of her § 1983 claim that she suffered a deprivation of her federal constitutional rights as a result of Paramount’s policy of causing individuals suspected of passing bad checks at Kings Dominion to be detained, arrested, and prosecuted, even without probable cause, to deter other park guests from engaging in such conduct. At trial, however, Austin was unable to present any evidence to substantiate those allegations. Rather, Austin’s evidence focused on her alternative theory of § 1983 liability, also alleged in the second amended complaint, that Paramount failed to exercise due care in training employees who participated in the investigation, detention, and arrest of individuals suspected of passing bad checks at Kings Dominion, and that such failure manifested a conscious disregard for Austin’s rights. Indeed, the district court, in" }, { "docid": "23119076", "title": "", "text": "0.C.G.A. § 37-3-43. Within a week, Mr. Harvey and his lawyer, Mr. Perry, obtained an order from Berrien County Probate Judge John P. Webb appointing Mr. Harvey as his wife’s emergency guardian. Mrs. Harvey was then transferred to Duke University Hospital in North Carolina. In April 1989, appellant filed suit against Mr. Harvey, Dr. Hunter, Dr. Friedman, Charter and Mr. Perry, claiming that she had been involuntarily incarcerated, given medications against her will, and never informed of her procedural rights under the Georgia Mental Health Act, O.C.G.A. § 37-3-1, et seq. Mrs. Harvey alleged that these violations arose as the result of a conspiracy among the doctors, Mr. Harvey and Charter to deprive her of her rights. In a second count, she charged that Mr. Harvey and his lawyer, Mr. Perry, falsely informed Judge Webb of her condition so that the resulting guardianship order failed to comport with Georgia law. Each defendant filed a motion to dismiss, and the motions were granted by the district court Harvey v. Harvey, 749 F.Supp. 1118 (M.D.Ga.1990). DISCUSSION CHARTER The initial barrier to appellant’s relief from Charter is that the actions she questions are actually the actions of Charter’s employees, not the actions of the hospital itself. The complaint alleges Mrs. Harvey was placed on a locked ward and given medication against her will. The hospital organization did not take these steps, hospital employees did. A defendant cannot be held liable under section 1983 on a respondeat superi- or or vicarious liability basis. Monell v. Department of Social Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Monell involved a municipal corporation, but every circuit court to consider the issue has extended the holding to private corpora tions as well. See Lux v. Hansen, 886 F.2d 1064, 1067 (8th Cir.1989) (private mental health center); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (department store); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982) (security guard employer); see also Jones v. Preuit & Mauldin, 851 F.2d 1321, 1325 (11th Cir.1988) (en banc), vacated on other grounds, 489" }, { "docid": "7757027", "title": "", "text": "alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” (citing Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985))). Finally, the Court notes that various circuits have applied Section 1983 and its limitations as set forth in Monell to private institutions such as Georgetown University where such private institutions employ quasi-state actors. See Iskander v. Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (holding that an alleged shoplifter detained by a store detective must show that an “impermissible policy” or a “constitutionally forbidden” rule or procedure of the department store was the “moving force of the constitutional violation”) (“[J]ust as a municipal corporation is not vicariously liable upon a theory of respon-deat superior for the constitutional torts of its employees, a private corporation is not vicariously liable under § 1983 for its employees’ deprivations of others’ civil rights.” (internal citation omitted)); Powell v. Shopco Laurel Co., 678 F.2d 504, 505-06 (4th Cir.1982) (holding that an individual detained for alleged shoplifting by a state-licensed security guard could not bring suit pursuant to Section 1983 against the private employer of the guard solely on the principle of respondeat superior). See also Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408-09 (2nd Cir.1990) (“[Plaintiff] is not suing ... the arresting, ‘quasi-public’ officer, and [the officer’s] employer [ ] is not responsible for the illegal arrest under the tort theory of respondeat superior in suits brought under § 1983. Private employers are not liable under § 1983 for the constitutional torts of their employees, unless the plaintiff proves that ‘action pursuant to official ... policy of some nature caused a constitutional tort.’ Although Monell dealt with municipal employers, its rationale has been extended to private businesses.” (internal citations omitted) (quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018)). “[A] corporation acting under color of state law will only be held liable under § 1983 for its own unconstitutional policies. The proper test is whether there is a policy, custom or action by those who represent official policy" }, { "docid": "3714736", "title": "", "text": "U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed. 2d 611 (1978); (2) corporate defendants similarly are not vicariously liable under § 1983, Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1432-33 (10th Cir.1984), cert. denied, 474 U.S. 818, 106 S.Ct. 65, 88 L.Ed.2d 53 (1985) (cert. petition of private defendant T.G. & Y. Stores); (3) municipal defendants in § 1983 claims receive no qualified immunity defense, Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673 (1980); and therefore corporate defendants to § 1983 suits likewise should not be able to claim qualified immunity. The basic premise underlying DeVargas’ argument is that because the courts have extended the principle that municipalities are not vicariously liable under § 1983 to include corporate defendants, we should similarly extend the rule that municipalities are not entitled to qualified immunity to private corporations. We reject this premise. The issue of whether parties should be held vicariously liable is completely distinct from whether parties should be entitled to qualified immunity. The Supreme Court’s holding in Monell was based on congressional intent that § 1983 liability not be imposed vicariously. See Monell, 436 U.S. at 691-92, 98 S.Ct. at 2036. Although Monell addressed only the liability of municipalities, the rationale of its holding applies equally to corporate defendants. Lusby, 749 F.2d at 1433; Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982). In the area of § 1983 immunities, the critical distinction is not between employer and individual defendants, but between defendants that are governmental bodies and other defendants. “[Different considerations come into play when governmental rather than personal liability is threatened.” Owen, 445 U.S. at 653 n. 37, 100 S.Ct. at 1416 n. 37. When the Court has addressed immunity of government actors who may be personally liable, it has made it clear that immunity in some form is the norm. See Harlow, 457 U.S. at 818 & n. 30, 102 S.Ct. at 2738 & n. 30. Similarly, we have just held generally that when private parties act pursuant to contractual duties and perform" }, { "docid": "15490248", "title": "", "text": "Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912-13, 68 L.Ed.2d 420 (1981) overruled in part, on other grounds Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1732-33, 56 L.Ed.2d 185 (1978). The second prong of the standard is not at issue in this case as Alexander’s does not dispute the district court’s ruling that its employment of Luck as a Special Police Officer satisfied § 1983’s “under color of” state law requirement. Rojas is not suing Luck, the arresting, “quasi-public” officer, and Luck’s employer, Alexander’s, is not responsible for the illegal arrest under the tort theory of re-spondeat superior in suits brought under § 1983. See Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453-54, 70 L.Ed.2d 509 (1981). Private employers are not liable under § 1983 for the constitutional torts of their employees, see Iskander v. Village of Forest Park, 690 F.2d 126, 128-29 (7th Cir.1982); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10th Cir.1974), unless the plaintiff proves that “action pursuant to official ... policy of some nature caused a constitutional tort.” Monell v. Dep’t of Social Serv. of the City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978) (emphasis added). See also Weeks, Personal Liability Under Federal Law: Major Developments Since Monell, in Section 1983: Sword and Shield, 295, 299 (Reilich and Carlisle ed. 1983). Although Monell dealt with municipal employers, its rationale has been extended to private businesses. See, e.g. Iskander, supra, at 128-29; Powell, supra, at 506; Smith v. Brookshire Bros., 519 F.2d 93, 94 (5th Cir.1975) (per curiam) (the mere fact that the store manager may have made a mistake in detaining customers suspected of shoplifting does not, by itself, make the store owner liable to customers for damages); Draeger, supra, at 145-46. Thus, to recover under § 1983, it is not enough for Rojas to show that his" }, { "docid": "14879402", "title": "", "text": "of municipal liability. In Monell v. Department of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities and other local governmental bodies constitute “persons” within the meaning of § 1983, see id. at 688-89, 98 S.Ct. 2018. The Court, however, has consistently refused to impose § 1983 liability upon a municipality under a theory of respondeat superior. See Board of the County Comm’rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Rather, under Monell and its progeny, a municipality is subject to § 1983 liability only when “it causes such a deprivation through an official policy or custom.” Carter v. Morris, 164 F.3d 215, 218 (4th Cir.1999) (emphasis added). We have determined that “Municipal policy may be found in written ordinances and regulations, in certain affirmative decisions of individual poli-cymaking officials, or in certain omissions on the part of policymaking officials that manifest deliberate indifference to the rights of citizens.” Id. (internal citations omitted). Municipal custom, on the other hand, may arise when a particular practice “is so persistent and widespread and so permanent and well settled as to constitute a custom or usage with the force of law.” Id. (internal quotation marks omitted). We have recognized, as has the Second Circuit, that the principles of § 1983 municipal liability articulated in Monell and its progeny apply equally to a private corporation that employs special police officers. Specifically, a private corporation is not liable under § 1983 for torts committed by special police officers when such liability is predicated solely upon a theory of respondeat superior. See Powell v. Shopco Laurel Co., 678 F.2d 504 (4th Cir.1982); Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406 (2d Cir.1990); see also Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir.1993) (concluding that private corporation is not subject to § 1983 liability under theory of respondeat superior regarding acts of private security guard employed by corporation); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (same). Rather, a private corporation is liable" }, { "docid": "11147660", "title": "", "text": "Inc., 924 F.2d 406, 408-09 (2d Cir.1990) (Monell’s rationale extends to private businesses even though Monell itself dealt with municipal employers); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (private corporation may not be held vicariously liable under § 1983 for its employees’ deprivations of others’ civil rights); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982) (nothing in Mo-nell suggests that municipal immunity should not be extended to a private corporation acting pursuant to § .1983). However, courts decided these cases before Wyatt. The Supreme Court articulated two “mutually dependent rationales” in support of Mo-nell-type immunity. See Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S.Ct. 1683, 1688, 40 L.Ed.2d 90 (1974). First, “the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion.” Second, “the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.” Id. In Sala v. County of Suffolk, the Second Circuit cogently explained the two rationales as follows: The first of these [rationales] is in large part peculiar to the context of individual official immunity [i.e., qualified immunity for individual officers]. The sense of injustice felt at the prospect of holding an individual officer liable in damages when he acted reasonably and in good faith is greatly diminished when the liability is to be affixed to a municipality, even if its responsible officials acted reasonably in the light of the then-existing law. Although “we are not insensitive to the financial plight of local governmental bodies” and wish to avoid “needlessly expanding] recovery at the expense of already overburdened taxpayers,” Turpin v. Mailet, [579 F.2d 152, 165 (2d Cir.) vacated on other grounds, 439 U.S. 974, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978) ], “fiscal considerations alone cannot stand in the way of the vindication of constitutional rights.” Id. at 165 n. 38. But, the second rationale discussed in Scheuer [v. Rhodes, 416 U.S. 232, 94" }, { "docid": "15888070", "title": "", "text": "Mejias’ arrest was not patently abusive, and (3) that preclude even the availability of qualified immunity on their malicious prosecution claims to private actors in Airborne’s position. Accordingly, Airborne’s motion for summary judgment on plaintiffs’ § 1983 false arrest and malicious prosecution claims is denied. 4. Respondeat Superior Throughout the foregoing discussion, it was assumed that Airborne can be held liable under § 1983 for the actions of its employees in this case. Although Airborne did not raise the issue in its briefs, this assumption does not appear to be correct. As previously discussed, under Monell, a municipality cannot be held vicariously liable under § 1983 for the actions of its employees. See 436 U.S. at 694, 98 S.Ct. at 2037. Instead, a municipality can only be held liable if the constitutional violation of which a plaintiff complains resulted from an official custom, policy, practice, or usage of the municipality. See id. at 690-91, 98 S.Ct. at 2035-36. The Second Circuit, along with every other court of appeals that has considered the issue, has held that Monell applies with equal force to private corporations sued under § 1983. See Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408-09 (2d Cir.1990); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982); Iskander v. Village of Forest Park, 690 F.2d 126, 128-29 (7th Cir.1982); Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir.1993); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989); Harvey v. Harvey, 949 F.2d 1127, 1129-30 (11th Cir.1992); see also Draeger v. Grand Cent., Inc., 504 F.2d 142, 145-46 (10th Cir.1974) (predating Monell, but holding that private employers are not liable under § 1983 for constitutional torts of their employees); Smith v. Brookshire Bros., 519 F.2d 93, 94 (1975) (per curiam) (same). Here, there is no evidence that Airborne had a corporate custom, policy, practice or usage of assisting law enforcement in making the type of improper controlled pickup alleged by plaintiffs. Moreover, although a private corporation, like a municipality, can be held liable under Monell for a single act of an employee with" }, { "docid": "7757026", "title": "", "text": "106 S.Ct. 1292. However, actors are not final policymakers merely because they have the authority to exercise discretion. See id. at 482-83, 106 S.Ct. 1292 (“The fact that a particular official—even a policymaking official-has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on the exercise of that discretion. The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable.” (internal citations omitted)). See also Triplett v. District of Columbia, 108 F.3d 1450, 1454 (D.C.Cir.1997) (noting that a final policymaker must be capable of more than “mere exercise of discretion” (quoting St. Louis v. Praprotnik, 485 U.S. 112, 126, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988))). Rather, the official must possess policy-making authority specific to the allegedly tortious conduct. See Pembaur, 475 U.S. at 483, 106 S.Ct. 1292 (“We hold that municipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” (citing Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985))). Finally, the Court notes that various circuits have applied Section 1983 and its limitations as set forth in Monell to private institutions such as Georgetown University where such private institutions employ quasi-state actors. See Iskander v. Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (holding that an alleged shoplifter detained by a store detective must show that an “impermissible policy” or a “constitutionally forbidden” rule or procedure of the department store was the “moving force of the constitutional violation”) (“[J]ust as a municipal corporation is not vicariously liable upon a theory of respon-deat superior for the constitutional torts of its employees, a private corporation is not vicariously liable under § 1983 for its employees’ deprivations of others’ civil rights.” (internal citation omitted)); Powell v. Shopco Laurel Co., 678 F.2d 504, 505-06 (4th Cir.1982) (holding that an individual detained for alleged" }, { "docid": "1556808", "title": "", "text": "of § 1983 actions.” Id. at 27-28, 101 S.Ct. at 186. Because plaintiff has alleged that the Doctor conspired with the Officers, who, for the reasons set forth above, were acting “under color of state law,” plaintiff has satisfied the requirement for maintaining a § 1983 action against this private defendant. C. The Hospital Plaintiff alleges that the Hospital is vicariously liable for the constitutional torts of its employees, the Officers and Doctor. While it is clear that vicarious liability may not be imposed under § 1983 upon a municipality, Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978), neither the Supreme Court nor the Second Circuit appear to have addressed directly the issue of whether a private corporate employer may be held liable under § 1983 on a respondeat superior theory. However, numerous courts in other jurisdictions have held that a corporate employer is not vicariously liable, relying on the reasoning of Monell. See, e.g., Iskander v. Village of Forest Park, 690 F.2d 126, 128-29 (7th Cir.1982); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10 Cir.1974); Estate of Iodice v. Gimbels, Inc., 416 F.Supp. 1054, 1055 (E.D.N.Y.1976). I agree that there is no tenable reason to distinguish a private employer from a municipality. Thus, a private corporate employer may not be vicariously liable under § 1983. This is not to say that a private corporate employer is never liable under § 1983. Where a plaintiff alleges a conspiracy between the private employer and its employees who are acting “under color of state law,” a sufficient basis for potential liability exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-52, 90 S.Ct. 1598, 1604-05, 26 L.Ed.2d 142 (1970); Rojas v. Alexander’s Dep’t Store, Inc., 654 F.Supp. 856, 858 (S.D.N.Y.1987). A further basis for liability would arise if plaintiff alleged that it was the Hospital’s policy to have its security guards engage in coercive practices or its medical staff to decline medical services to arrested persons. Such a" }, { "docid": "11147659", "title": "", "text": "Addington, the defendants will have to prove that they complied with the standards articulated in the Wyoming Emergency Detention Statute by clear and convincing evidence to prevail at trial. b. the Monell doctrine. If defendant Wyoming Medical Center is not entitled to qualified immunity under Wyatt v. Cole, then the same reasoning precludes Wyoming Medical Center from asserting municipal immunity pursuant to Mo-nell v. New York City Dep’t of Social Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Monell, the Supreme Court held that a municipality cannot be held liable under a respondeat superior theory. Instead, Monell requires that “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, [must] inflict[ ] the injury” for the municipality to be liable. 436 U.S. at 694, 98 S.Ct. at 2038. After Monell, several circuits held that “municipal immunity” extended to private corporations that acted under color of state law. See, e.g., Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408-09 (2d Cir.1990) (Monell’s rationale extends to private businesses even though Monell itself dealt with municipal employers); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (private corporation may not be held vicariously liable under § 1983 for its employees’ deprivations of others’ civil rights); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982) (nothing in Mo-nell suggests that municipal immunity should not be extended to a private corporation acting pursuant to § .1983). However, courts decided these cases before Wyatt. The Supreme Court articulated two “mutually dependent rationales” in support of Mo-nell-type immunity. See Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S.Ct. 1683, 1688, 40 L.Ed.2d 90 (1974). First, “the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion.” Second, “the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public" }, { "docid": "15888071", "title": "", "text": "that Monell applies with equal force to private corporations sued under § 1983. See Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408-09 (2d Cir.1990); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982); Iskander v. Village of Forest Park, 690 F.2d 126, 128-29 (7th Cir.1982); Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir.1993); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989); Harvey v. Harvey, 949 F.2d 1127, 1129-30 (11th Cir.1992); see also Draeger v. Grand Cent., Inc., 504 F.2d 142, 145-46 (10th Cir.1974) (predating Monell, but holding that private employers are not liable under § 1983 for constitutional torts of their employees); Smith v. Brookshire Bros., 519 F.2d 93, 94 (1975) (per curiam) (same). Here, there is no evidence that Airborne had a corporate custom, policy, practice or usage of assisting law enforcement in making the type of improper controlled pickup alleged by plaintiffs. Moreover, although a private corporation, like a municipality, can be held liable under Monell for a single act of an employee with final policymaking authority in the particular area involved, see Austin v. Paramount Parks, Inc., 195 F.3d 715, 728-29 (4th Cir. 1999) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986) (plurality opinion)), the two Airborne employees involved in the Mejias’ arrest and prosecution do not appear to have been final corporate policymakers in the area of cooperation with law enforcement. Bezmen was Airborne’s regional security manager for the greater New York area only, while Gennarelli was the “cartage supervisor” for the particular Airborne office through which the controlled pickup was conducted. Other courts have held that corporate employees in similar positions are not final policymakers for § 1983 purposes. See, e.g., Austin v. Paramount Parks, 195 F.3d 715, 729-30 (4th Cir.1999) (holding that theme park’s manager of loss prevention was not a final policymaker); Smith v. United States, 896 F.Supp. 1183, 1186 (M.D.Fla.1995) (holding that facility manager of particular halfway house run by private corporation was not final policymaker); Miller v. Correctional Med. Sys., Inc., 802" }, { "docid": "2461915", "title": "", "text": "the Supreme Court has not directly said whether Monell applies to private corporations, and there are powerful reasons to say no. Yet we and all other circuits that have considered the question have said yes. Why? It’s not easy to say. Our opinion in Iskander and virtually all of the circuit opinions after Monell simply cite one or more prior cases that all seem to trace back to the terse Fourth Circuit opinion in Powell v. Shopco Laurel Co., 678 F.2d 504 (4th Cir.1982). The relevant portion of that opinion said in full: In Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that a municipal corporation cannot be saddled with section 1983 liability via respondeat superior alone. We see this holding as equally applicable to the liability of private corporations. Two aspects of Monell exact this conclusion. The Court found section 1983 evincing a Congressional intention to exclude the imposition of vicarious answerability. For a third party to be' liable the statute demands of the plaintiff proof that the former “caused” the deprivation of his Federal rights. 436 U.S. at 691-92, 98 S.Ct. 2018. Continuing, the Court observed that the policy considerations underpinning the doctrine of respondeat superior insufficient to warrant integration of that doctrine into the statute. Id. at 694, 98 S.Ct. 2018. No element of the Court’s ratio decidendi lends support for distinguishing the case of a private corporation. 678 F.2d at 506. There are good reasons to question the Powell conclusion. It overlooked the fact that Monell was focused on the Sherman Amendment, which would have imposed liability for mere failure to prevent harm caused by private citizens, not employees controlled by an employer. It also overlooked the fact that respondeat superior liability was already a well established part of the common law in 1871, so Congress could reasonably have expected the courts to apply the doctrine under § 1988. Perhaps most important, the Powell opinion simply overlooked the Monell Court’s special solicitude for municipalities and their budgets. These omissions counsel against" } ]

[ { "docid": "22438326", "title": "", "text": "21,1975. The last day for filing claims was, therefore, February 21, 1976. Although the County did not file a formal proof of claim with either the referee or the trustee, it did send a letter, dated December 11, 1975, to the trustee, enclosing two tax bills. The trustee received the letter, but did not forward it to the referee or take any other action with respect to it. On July 21, 1976, five months subsequent to the expiration of the time for filing a proof of claim, the County filed an application for leave to file a claim. The bankruptcy judge denied this motion on October 27, 1976. The County thereafter appealed to the district court which reversed the order of the bankruptcy court, and ordered that the County be permitted to file an amended proof of claim. The trustee appeals from this judgment. We have long applied the so-called rule of “liberality in amendments,” In re Patterson-MacDonald Shipbldg. Co., 293 F. 190, 191 (9th Cir. 1923); Sun Basin Lumber Co. v. United States, 432 F.2d 48, 49 (9th Cir. 1970) (per curiam). We must now decide whether delivery of the County’s letter to the trustee meets this test. In re Patterson-MacDonald Shipbldg. Co., supra, presented circumstances virtually identical to those of the case now before us. We held that the letter sent to the trustee in that case was sufficient to allow for amendment. We believe that, although the County’s letter is neither as precise, nor perhaps as pointed, as that which we allowed in Patterson-MacDonald, it, together with the enclosed tax bills, is a statement in writing that is signed by an agent of the creditor, and, “reasonably construed,” sets forth the claim, the “consideration” (or “ground of liability,” Official Form 15) therefor, that no payments have been made thereon, and that the sum is justly owing. The letter thus contains much of the pertinent information required by relevant statute, 11 U.S.C. § 93(a), Bankruptcy Rule, 301(a), and Official Form, 15. The question before us, of course, is not whether the letter sufficed as a formal proof of" } ]

[ { "docid": "18577319", "title": "", "text": "to protect the bank’s interest in the estate of the debtor. Recent case law has evolved the equitable doctrine of an “informal” proof of claim. For a document to constitute an informal proof of claim, a three-prong test must be satisfied; the document must state an explicit demand showing: 1) the nature of the claim, 2) the amount of the claim against the estate, and 3) must evidence an intent to hold the debtor liable. In re Nucorp Energy, Inc. 52 B.R. 843 (Bkrtcy.N.D.Ca.1985). The Court believes that the filing of the adversary proceeding in this Court meets all the requirements as set out by the Court in Nucorp Energy. See also, In re Francisian Vineyards, Inc., 597 F.2d 181 (9th Cir.1979) cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598, holding that for documents to constitute an infor mal proof of claim, they must state an explicit demand showing the nature, and amount of the claim against the estate and evidence an intent to hold the debtor liable. In the absence of prejudice to an opposing party, bankruptcy courts, as courts of equity should allow amendments to proofs of claim that relate back to the filing date of the informal claim when the purpose is to cure a defect in the claim as filed or to describe the claim with greater particularity. Warts v. Weller 653 F.2d 1288 (9th Cir.1981). Although no Fifth Circuit cases are on point, the Court notes two other Ninth Circuit cases, In re Pizza of Hawaii, Inc., 761 F.2d 1374 (9th Cir.1985) and In re Sambo’s Restaurants, 754 F.2d 811 (9th Cir.1985). In Sambo’s, the claimant’s filing of a wrongful death action, in District Court, prior to the bar date, together with correspondence from the claimant and the debtor to transfer the case to the Bankruptcy Court was held sufficient to constitute an amendable proof of claim, even though the wrongful death action was dismissed by the District Court. In Pizza, a creditor of the Chapter 11 debtor had filed an action against the debtors prepetition, and post-petition, had filed a Motion" }, { "docid": "17974166", "title": "", "text": "case to the bankruptcy court in California. The creditor did not file a proof of claim in time. After the time limit, the creditor filed a motion for leave to amend an informal claim. In affirming the District Court’s reversal of the Bankruptcy Court’s order denying the motion, the Court of Appeals held that because Sambo’s was a debtor in possession, “communications to Sambo’s were the equivalent of communications to a trustee.” Id., at 815. In the instant case, the debtor is not a debtor in possession as the debtor was in Sambo’s. Also, neither the debtor nor the trustee in the instant case was a party to the lawsuit pending in the U.S. District Court for the District of Washington. Therefore, Lees-Carney’s answer and counterclaim in the River Grain, Inc. litigation does not constitute written notice to the trustee of the nature and amount of the claim. Lees-Carney next argues that Bankruptcy Rule 5005(b) does not require an intent to file the proof of claim in the district in which the bankruptcy case is pending. Bankruptcy Rule 5005 states: (a) Filing. The petition, proofs of claim or interest, complaints, motions, applications, objections and other papers required to be filed by these rules, except as provided in 28 U.S.C. § 1473 shall be filed with the clerk of the court in which the case under the Code is pending. The judge of that court may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the clerk. (b) Error in Filing. A paper intended to be filed but erroneously delivered to the trustee, the attorney for the trustee, a bankruptcy judge, a district judge, or the clerk of the district court shall, after the date of its receipt has been noted thereon, be transmitted forthwith to the clerk of the bankruptcy court. In the interest of justice, the court may order that the paper shall be deemed filed as of the date of its original delivery. Lees-Carney asserts that in Sambo’s, the Ninth Circuit has interpreted this" }, { "docid": "8934101", "title": "", "text": "needs no case authority to decide whether a fresh claim can be filed late and be deemed timely. The answer is a resounding no. United is not asking this Court to contravene any of the rigid time bar policies as established by the Bankruptcy Reform Act of 1978. United raises the proper issue. Did the misfiled Energy claim (for breach of the guaranty of Supply’s obligation to pay United) constitute an amendable informal proof of claim against Supply on the original contract? As enunciated in In re Franciscan Vineyards, Inc., 597 F.2d 181, 183 (9th Cir.1979) per curiam, cert. denied 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980) and later followed in In re Sambo’s Restaurants, 754 F.2d 811 (9th Cir.1985), for a document to constitute an informal proof of claim, a three-prong test must be satisfied. The document must state an explicit demand showing (1) the nature of the claim, (2) the amount of the claim against the estate and (3) must evidence an intent to hold the debtor liable. In re Franciscan Vineyards, Inc., at 183; In re Sambo’s, at 815. In Sambo’s, the debtor filed for Chapter 11 relief on November 27, 1981, in the Central District of California. The Bankruptcy Court set July 12, 1982 as the last day for filing proofs of claim. On February 19, 1982, the plaintiff, in violation of the automatic stay, filed a wrongful death action against the debtor in the United States District Court for the Northern District of Alabama. Sambo’s Alabama counsel informed the plaintiff of the bankruptcy proceedings and demanded that the plaintiff dismiss the suit. The two parties continued to exchange correspondence. At no time was there any mention of the July 12, 1982 bar date. The District Court denied a joint motion to transfer the Alabama complaint to the Central District of California Bankruptcy Court and instead, on June 30, 1982, dismissed the action. In December 1982, the plaintiff moved the Bankruptcy Court for leave to amend an informal proof of claim. The Bankruptcy Court denied this motion, stating that the wrongful death complaint" }, { "docid": "10560265", "title": "", "text": "the judicial record prior to expiration of the time limit for filing such a claim, some courts have allowed an amendment to that informal proof claim by a properly drawn formal proof of claim. In re Pabis, 62 B.R. 633, 636 (Bankr.D.Conn.1986) (Shiff, J.). Under this doctrine, courts have construed a variety of documents to represent informal proofs of claim when the documents, at a minimum, indicate the basis for the claim and the creditor’s intent to hold the estate liable. See In re Charter Co., 876 F.2d 861 (11th Cir.1989) (creditors’ motions for relief from stay); In re Anderson-Walker Indus., Inc., 798 F.2d 1285 (9th Cir.1986), In re Franciscan Vineyards, Inc., 597 F.2d 181 (9th Cir.1979) (per curiam) (letters notifying the estate trustee of a debt of the estate), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980); In re Sambo’s Restaurants, Inc., 754 F.2d 811 (9th Cir.1985) (postpetition lawsuit filed against the debtor in U.S. District Court and joint motion with debtor to transfer action to bankruptcy court). Nutmeg’s documents fall short of constituting an informal proof of claim. The only document actually filed with the court is the attorney’s appearance which contains no mention of any claim. See In re South Atl. Fin. Corp., 767 F.2d 814, 820 (11th Cir.1985), cert. denied, 475 U.S. 1015, 106 S.Ct. 1197, 89 L.Ed.2d 311 (1986). Nutmeg’s state-court suit against Ohlbaum asserts no claim against the debtor. See In re Kenitra, Inc., 53 B.R. 152, 155-56 (Bankr.D.Or.1985) (“[Rjather than expressing an intent to hold the debtor or the estate liable, the [action] may express an intent by [the creditor] to waive any claim against the debtor or the estate.”), aff'd, 64 B.R. 841 (Bankr. 9th Cir.1986); In re Evanston Motor Co., Inc., 26 B.R. 998, 1001-02 (N.D.Ill.1983), aff'd, 735 F.2d 1029 (7th Cir.1984). Cf. In re Sambo’s Restaurants, Inc., 754 F.2d 811 (9th Cir.1985). Finally, Nutmeg’s attorney’s letter to the United States Trustee’s Office requesting Nutmeg’s appointment to the creditors’ committee does not qualify as a filing with the bankruptcy court, see Bankr.R. 5005(a), and does not come" }, { "docid": "18782411", "title": "", "text": "See In re Pizza of Hawaii, Inc., 761 F.2d 1374, 1377 (9th Cir.1985) (Pizza of Hawaii); In re Sambo’s Restaurants, Inc., 754 F.2d 811, 815 (9th Cir.1985) (Sambo’s). III ANALYSIS The Trustee raises two arguments on appeal. First, he argues that Lafayette failed to satisfy the requirements set out in our cases for the filing of an amended proof of claim. See In re Franciscan Vineyards, Inc., 597 F.2d 181, 182-83 (9th Cir.1979) (per curiam) (Franciscan Vinyards), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980); Sun Basin Lumber Co. v. United States, 432 F.2d 48, 49-50 (9th Cir.1970) (per curiam) (Sun Basin). Second, he argues that even if Lafayette filed an informal claim, it did not satisfy the \"misdelivery” exception of former Bankruptcy Rule 509(c) (repealed 1983 and repromulgated as Bankruptcy Rule 5005(b)). See In re Evanston Motor Co., 735 F.2d 1029, 1031-32 (7th Cir.1984) (Evanston Motor). We consider each contention separately. A. Informal Claim Our cases have consistently applied the “so-called rule of liberality in amendments” to creditors’ proofs of claim. Franciscan Vineyards, 597 F.2d at 182 (quoting In re Patterson-MacDonald Shipbuilding Co., 293 F. 190, 191 (9th Cir. 1923)). For a document to constitute an informal proof of claim, it must state an explicit demand showing the nature and amount of the claim against the estate, and evidence an intent to hold the debtor liable. Sambo’s, 754 F.2d at 815. The reason for this “liberal” rule is elemental. Bankruptcy courts are courts of equity, and must assure “that substance will not give way to form, [and] that technical considerations will not prevent substantial justice from being done.” Pepper v. Litton, 308 U.S. 295, 305, 60 S.Ct. 238, 244, 84 L.Ed. 281 (1939); In re International Horizons, Inc., 751 F.2d 1213, 1216 (11th Cir.1985). The “liberal” rule reflects our preference for resolution on the merits, as against strict adherence to formalities. In Sun Basin, 432 F.2d 48, a secured creditor did not file a formal proof of claim within the statutory period, but did file an objection to the trustee’s petition to sell the property" }, { "docid": "10560266", "title": "", "text": "fall short of constituting an informal proof of claim. The only document actually filed with the court is the attorney’s appearance which contains no mention of any claim. See In re South Atl. Fin. Corp., 767 F.2d 814, 820 (11th Cir.1985), cert. denied, 475 U.S. 1015, 106 S.Ct. 1197, 89 L.Ed.2d 311 (1986). Nutmeg’s state-court suit against Ohlbaum asserts no claim against the debtor. See In re Kenitra, Inc., 53 B.R. 152, 155-56 (Bankr.D.Or.1985) (“[Rjather than expressing an intent to hold the debtor or the estate liable, the [action] may express an intent by [the creditor] to waive any claim against the debtor or the estate.”), aff'd, 64 B.R. 841 (Bankr. 9th Cir.1986); In re Evanston Motor Co., Inc., 26 B.R. 998, 1001-02 (N.D.Ill.1983), aff'd, 735 F.2d 1029 (7th Cir.1984). Cf. In re Sambo’s Restaurants, Inc., 754 F.2d 811 (9th Cir.1985). Finally, Nutmeg’s attorney’s letter to the United States Trustee’s Office requesting Nutmeg’s appointment to the creditors’ committee does not qualify as a filing with the bankruptcy court, see Bankr.R. 5005(a), and does not come within the exceptions of Bankruptcy Rule 5005(b). IV. CONCLUSION Because Nutmeg has not established that it has filed an informal proof of claim, its motion for relief to amend such a proof of claim must be, and hereby is, denied. . Rule 3003. Filing Proof of Claim or Equity Security Interest in Chapter 9 Municipality or Chapter 11 Reorganization Cases. (c) Filing Proof of Claim. (2) Who Must File. Any creditor, or equity security holder whose claim or interest is not scheduled or scheduled as disputed, contingent, or unliquidated shall file a proof of claim or interest within the time prescribed by subdivision (c)(3) of this rule; any creditor who fails to do so shall not be treated as a creditor with respect to such claim for the purposes of voting and distribution. (3) Time for Filing. The court shall fix and for cause shown may extend the time within which proofs of claim or interest may be filed. Bankr.R. 3003(c)(2) & (3). . A document submitted by Nutmeg dated after the bar date has" }, { "docid": "18782415", "title": "", "text": "filed in a formal proof of claim. 597 F.2d at 182. See also 11 U.S.C. § 501; Bankr.R. 301(a) (repealed 1983). Further, the Trustee was under a duty.to “reasonably construe” Lafayette’s communication. Id. at 183. The Trustee knew that Lafayette was the Debtor’s single largest creditor, that Lafayette was concerned with the status of its claim and the date that payment would be forthcoming, and that Lafayette had taken an active and continuing role in the Debtor’s bankruptcy and business. Lafayette’s active participation in the bankruptcy court proceedings may be considered in determining whether its December 17th letter was an amendable informal proof of claim. Pizza of Hawaii, 761 F.2d at 1380. Lafayette’s letter, “reasonably construed” in light of these facts, strongly implies Lafayette’s intention to collect on the debt. We agree with the bankruptcy court that the December 17th letter was an amendable informal proof of claim. See Sambo’s, 754 F.2d at 816 (discussing Franciscan Vineyards, and noting that letter sent by that claimant to debtor’s attorney would constitute a valid informal claim). B. Bankruptcy Rule 509(c) We next consider the Trustee’s argument that Lafayette was required to prove it directed the December 17th letter to the bankruptcy court but instead mistakenly delivered it to the Trustee. The Trustee relies on former Bankruptcy Rule 509(c), which provides: A paper intended to be filed but erroneously delivered to the trustee or receiver, or the attorney for either of them, or to the district judge, referee, or clerk of the district court, shall, after the date of its receipt has been noted thereon, be transmitted forthwith to the proper person. In the interest of justice the court may order that the paper shall be deemed filed as of the date of its original delivery. Bankr.R. 509(c) (repealed 1983, current version at 5005(b)). We recognize that Rule 509(c) might be construed to support the Trustee’s interpretation. See Evanston Motor, 735 F.2d at 1031-32. But the language of the Rule does not dictate the Trustee’s construction. The Rule does not state that the creditor (or other sender) must direct the paper to the" }, { "docid": "16513127", "title": "", "text": "320 F.2d 584, 590 (9th Cir.1963). Franciscan Vineyards, at 183. In Franciscan Vineyards (a case under the former Bankruptcy Act), the creditor sent a letter to the bankruptcy trustee prior to the bar date, enclosing tax bills owed by the bankrupt — the Ninth Circuit found the letter to constitute an informal proof of claim, and also held that delivery of the letter to the trustee was sufficient and it was unnecessary for the letter to be filed with the court. Informal proofs of claim have continued to be recognized under the Bankruptcy Code, see: Anderson-Walker Industries, Inc. v. Lafayette Metals, Inc. (In re Anderson-Walker Industries, Inc.), 798 F.2d 1285 (9th Cir.1986) (letter to counsel for Chapter 7 trustee prior to claims bar date, stating that creditor was owed a certain amount and expected to be paid by the estate; the letter was held to constitute an informal proof of claim even though it was not filed with the bankruptcy court); Sambo’s Restaurants, Inc. v. Wheeler (In re Sambo’s Restaurants, Inc.), 754 F.2d 811 (9th Cir.1985) (complaint filed in state court post-petition, followed by correspondence to attorney for Chapter 11 debtor-in-possession and joint motion to transfer lawsuit to bankruptcy court, all prior to claims bar date; the combination of such documents was held to constitute an informal proof of claim even though none of them was filed with the bankruptcy court); Pizza of Hawaii, Inc. v. Shakey’s, Inc. (Matter of Pizza of Hawaii, Inc.), 761 F.2d 1374 (9th Cir.1985) (request for stay relief filed in Chapter 11 case prior to claims bar date, attaching copy of pre-petition complaint; the stay relief request was held to constitute an informal proof of claim). Creditor argues that, during the Chapter 11 case, White made the United States Trustee aware of the existence of Creditor’s State Court Complaint in several telephone conversations concerning the fact that the State Court action continued to be stayed by Debtor’s bankruptcy. However, Creditor does not contend that any document concerning his claim against Debtor was ever delivered to anyone connected with either the Chapter 11 case or the" }, { "docid": "18496266", "title": "", "text": "Owens, 67 B.R. 418, 423 (Bkrtcy.E.D.Pa.1987); In re Key, 64 B.R. 786, 788 (Bkrtcy.M.D.Tenn.1986); In re Street, 55 B.R. 763, 766 (Bkrtcy.App. 9th Cir.1985); In re Ryan, 54 B.R. 105, 106 (Bkrtcy.E.D.Pa.1985). . When the Evanston Motor Co., case was decided former Bankr.R. 509(c) was applicable and provided as follows: Bankruptcy Rule 509(c) provides as follows: Error in Filing. A paper intended to be filed but erroneously delivered to the trustee or receiver, or the attorney for either of them, or to the district judge, referee, or clerk of the district court, shall, after the date of its receipt has been noted thereon, be transmitted forthwith to the proper person. In the interest of justice, the court may order that the paper shall be deemed filed as of the date of its original delivery. Bankr.R. 509(c) was subsequently abolished, and replaced by Bankr.R. 5005(b) which now provides as follows: (b) Error in Filing. A paper intended to be filed but erroneously delivered to the trustee, the attorney for the trustee, a bankruptcy judge, a district judge, or the clerk of the district court shall, after the date of its receipt has been noted thereon, be transmitted forthwith to the clerk of the bankruptcy court. In the interest of justice, the court may order that the paper shall be deemed filed as of the date of its original delivery. The case at bar does not involve an “error in filing”, because the objection to confirmation by the creditor was correctly filed with the Bankruptcy Clerk pursuant to Bankr.R. 5005(a), and thus Bankr.R. 5005(b) does not apply here. However, the Seventh Circuit in the Evanston Motor Co., case did state that \"for the purposes of appeal, we accept the Bankruptcy Judge’s determination that the August 18, 1980 letter may be interpreted as a proof of claim under all the circumstances appearing before him.” Id. 735 F.2d at 1031. The Court further stated, “where delivery of this proof of claim to the trustee may have resulted from an error in judgment, there was no erroneous delivery under the plain meaning of Rule 509(c).”" }, { "docid": "18734452", "title": "", "text": "and the documents Shakey’s filed in the bankruptcy court constitute an amendable informal proof of claim. Our recent decision in In re Sambo’s Restaurants, Inc., 754 F.2d 811 (9th Cir.1985), governs this issue. In Sambo’s, the debtor filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. While the automatic stay was in effect, the creditor in Sambo’s filed a wrongful death suit in a U.S. District Court. The debtor and the creditor then joined in a motion requesting the district court to transfer the case to the bankruptcy court. The district court denied the motion, and instead entered an order dis missing the case without prejudice to the creditor to petition to reinstate the action to pursue any matter unresolved by the bankruptcy court after the stay was dissolved. But the creditor never filed a formal proof of claim in the bankruptcy proceedings. Rather, after the date for filing had passed, she moved in the bankruptcy court for leave to amend what she characterized as an informal proof of claim established within the filing period. The bankruptcy court denied her motion, but the district court reversed. On appeal, we affirmed the district court in light of our “long-established liberal policy toward amendment of proofs of claim.” Sambo’s, 754 F.2d at 816. See Sun Basin Lumber Co. v. United States, 432 F.2d 48, 49 (9th Cir.1970) (per curiam); In re Franciscan Vineyards, Inc., 597 F.2d 181, 182 (9th Cir.1979) (per curiam), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980). After examining the complaint the creditor filed in the U.S. District Court, the creditor’s correspondence with debtor’s counsel, and her joint motion with the debtor to transfer the case to the bankruptcy court, we found that these documents established an informal proof of claim because they “state an explicit demand showing the nature and amount of the claim against the estate, and evidence an intent to hold the debtor liable.” Sambo’s, 754 F.2d at 815. The documents Shakey’s filed in the instant chapter 11 case also establish an informal proof of claim. In its" }, { "docid": "18782410", "title": "", "text": "1983 Lafayette filed a formal proof of claim, “amending” its letter of December 1980. The Trustee filed an objection to the “amended” proof of claim with the bankruptcy court. He argued that the December 1980 letter could not be considered a timely and valid proof of claim and hence the March 1983 “amendment” was invalid. The bankruptcy court denied the Trustee’s objection, finding, among other things, that “communications disclosing the nature and extent of the claim and intention to hold the Estate liable for the claim took place during the period to file claims.” The bankruptcy court subsequently denied the Trustee’s motion for reconsideration and the district court affirmed. II STANDARD OF REVIEW Because we are in as good a position as the district court to review the bankruptcy court’s findings, we independently review the bankruptcy court’s decision. In re Acequia, Inc., 787 F.2d 1352, 1357 (9th Cir.1986). Whether the documents filed by Lafayette, considered in conjunction with Lafayette’s conduct, constitute an amendable informal proof of claim is a question of law reviewed de novo. See In re Pizza of Hawaii, Inc., 761 F.2d 1374, 1377 (9th Cir.1985) (Pizza of Hawaii); In re Sambo’s Restaurants, Inc., 754 F.2d 811, 815 (9th Cir.1985) (Sambo’s). III ANALYSIS The Trustee raises two arguments on appeal. First, he argues that Lafayette failed to satisfy the requirements set out in our cases for the filing of an amended proof of claim. See In re Franciscan Vineyards, Inc., 597 F.2d 181, 182-83 (9th Cir.1979) (per curiam) (Franciscan Vinyards), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980); Sun Basin Lumber Co. v. United States, 432 F.2d 48, 49-50 (9th Cir.1970) (per curiam) (Sun Basin). Second, he argues that even if Lafayette filed an informal claim, it did not satisfy the \"misdelivery” exception of former Bankruptcy Rule 509(c) (repealed 1983 and repromulgated as Bankruptcy Rule 5005(b)). See In re Evanston Motor Co., 735 F.2d 1029, 1031-32 (7th Cir.1984) (Evanston Motor). We consider each contention separately. A. Informal Claim Our cases have consistently applied the “so-called rule of liberality in amendments” to creditors’ proofs of" }, { "docid": "1271160", "title": "", "text": "with the trustee. Bankruptcy Rule 3002 unambiguously requires that a proof of claim be filed in accordance with Rule 5005. In turn, Rule 5005(a) expressly and specifically provides that proofs of claim and other papers required to be filed, with exceptions not pertinent here, shall be filed with the clerk in the district where the case under the Code is pending. In the instant case only the Bank’s motion to lift stay, which by itself does not constitute an informal proof of claim, was filed with the clerk of the bankruptcy court. The Foreclosure Documents and the letter to the Debtor’s attorney were never filed with the clerk of the bankruptcy court. This does not end the Court’s inquiry, however. The matter becomes somewhat more complicated when Rule 5005(b) and related decisions are considered. Rule 5005(b) provides that a paper intended to be filed, but erroneously delivered to the trustee, the attorney for the trustee, a bankruptcy judge, a district judge, or the clerk of the district court shall, after the date of its receipt has been noted thereon, be transmitted forthwith to the clerk of the bankruptcy court. In the interest of justice, the court may order that the paper shall be deemed filed as of the date of the original delivery. Bankruptcy Rule 5005(b). The Bank relies heavily on In re Sambo’s Restaurants, Inc., 754 F.2d 811, 12 C.B. C.2d 173, 12 B.C.D. 1177 (9 Cir.1985), where a widow’s wrongful death action in a U.S. District Court in Alabama together with her joint motion with the Debtor to transfer the action to U.S. Bankruptcy Court in California were found to constitute an informal proof of claim. The Ninth Circuit construed Rule 5005(b) to find that the misdelivery exception had been met, relying on its earlier decision in In re Franciscan .Vineyards, Inc., 597 F.2d 181, 5 B.C.D. 476 (9th Cir.1979) (per curiam), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980). Franciscan Vine yards had held that a letter to the trustee enclosing delinquent tax bills was a sufficient informal proof of claim because it" }, { "docid": "10560264", "title": "", "text": "were to be filed. See Bankr.R. 3003(c)(2) and (3). Nutmeg concedes it never timely filed a formal proof of claim. See Official Form 19. Nutmeg asserts that, taken together, a state-court action it commenced on or about April 7, 1989 against Gary Ohlbaum, one of the debtor’s officers, based on his personal written guarantee of the debtor’s obligations; a letter dated May 16, 1989 from the debtor’s attorney to Nutmeg’s attorney acknowledging receipt of the complaint served on Ohlbaum and requesting time for Ohlbaum to obtain counsel; a letter dated July 14, 1989 from Nutmeg’s attorney to the United States Trustee’s Office stating the amount of Nutmeg’s claim and requesting Nutmeg’s appointment to the unsecured creditors’ committee; and the filing on March 31, 1989 with the clerk of the bankruptcy court of an appearance by an attorney as counsel for Nutmeg constitute the informal proof of claim. III. DISCUSSION If a writing sufficient to show the existence, nature and amount of a claim against the estate has been filed and has timely become part of the judicial record prior to expiration of the time limit for filing such a claim, some courts have allowed an amendment to that informal proof claim by a properly drawn formal proof of claim. In re Pabis, 62 B.R. 633, 636 (Bankr.D.Conn.1986) (Shiff, J.). Under this doctrine, courts have construed a variety of documents to represent informal proofs of claim when the documents, at a minimum, indicate the basis for the claim and the creditor’s intent to hold the estate liable. See In re Charter Co., 876 F.2d 861 (11th Cir.1989) (creditors’ motions for relief from stay); In re Anderson-Walker Indus., Inc., 798 F.2d 1285 (9th Cir.1986), In re Franciscan Vineyards, Inc., 597 F.2d 181 (9th Cir.1979) (per curiam) (letters notifying the estate trustee of a debt of the estate), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980); In re Sambo’s Restaurants, Inc., 754 F.2d 811 (9th Cir.1985) (postpetition lawsuit filed against the debtor in U.S. District Court and joint motion with debtor to transfer action to bankruptcy court). Nutmeg’s documents" }, { "docid": "1271152", "title": "", "text": "to the Debtor’s attorney constitute an informal proof of claim which can be amended to allow the Bank to state its claim with greater particularity. The Trustee urges that these documents do not pass the tests used in In re Sherret, 58 B.R. 750 (Bankr.W.D.La.1986), and that even if they did, the documents do not constitute an informal proof of claim because, with the exception of the motion to lift stay, they were not filed with the Court, or even the trustee, as is required by Bankruptcy Rule 5005. Analysis I shall first address the issue of whether or not the information provided in the documents relied upon by the Bank is sufficient to create an informal proof of claim. Under Bankruptcy Rule 3002, with certain exceptions not here relevant, the claim of an unsecured creditor cannot be allowed in a Chapter 7 case unless filed within 90 days after the first date set for the Sec. 341 meeting of creditors, and in accordance with Bankruptcy Rule 5005, which requires filing in the district where the bankruptcy case is pending. • However, the document does not have to be styled “Proof of Claim” or be filed in the form of a claim, if it fulfills the purposes for which the filing of proof is required. In re Lipman, 65 F.2d 366, 368 (2nd Cir.1933). Bankruptcy Rule 3001(a) provides that a proof of claim is a written statement setting forth a creditor’s claim and requires that it shall conform substantially to Official Form Nos. 19, 20, or 21. A number of decisions recognize that various pleadings, documents, or written communications, not styled “Proof of Claim” may under certain conditions nevertheless constitute valid informal proofs of claim. See, generally, In re A.H. Robins Co., Inc., 862 F.2d 1092, 18 B.C.D. 1034 (4th Cir.1988); Anderson-Walker Industries., Inc. v. Lafayette Metals, Inc., (In re Anderson Walker Industries., Inc.), 798 F.2d 1285, 14 B.C.D. 1395 (9th Cir.1986); Liakas v. Creditors Committee of Deja Vu, Inc., 780 F.2d 176, 178 (1st Cir.1986); Sambo’s Restaurants, Inc. v. Wheeler (In re Sambo’s Restaurants, Inc.), 754 F.2d 811, 12" }, { "docid": "17974165", "title": "", "text": "Stewart, supra, this court, reiterating the test enunciated by the Ninth Circuit Court of Appeals, held that an informal proof of claim must be a written instrument, filed with the trustee or the court which brings to the attention of the court the nature and amount of the claim. Id., at 76. The document(s) must also evidence an intent to hold the debtor liable. In Re Sambo’s Restaurants, Inc., 754 F.2d 811 (9th Cir.1985). Lees-Carney argues that its counterclaim in the River Grain, Inc., litigation was a written instrument which states the nature and amount of the claim and evidences an intent to look to the bankrupt for satisfaction. In support of this argument, Lees-Carney relies heavily upon In Re Sambo’s Restaurants, Inc., supra. In Sambo’s, a creditor had filed a wrongful death complaint in the U.S. District Court for the Northern District of Alabama against the debtor in possession. The bankruptcy case was pending in the Central District of California. Before the claims-bar date, a motion was filed in Alabama to transfer the Alabama case to the bankruptcy court in California. The creditor did not file a proof of claim in time. After the time limit, the creditor filed a motion for leave to amend an informal claim. In affirming the District Court’s reversal of the Bankruptcy Court’s order denying the motion, the Court of Appeals held that because Sambo’s was a debtor in possession, “communications to Sambo’s were the equivalent of communications to a trustee.” Id., at 815. In the instant case, the debtor is not a debtor in possession as the debtor was in Sambo’s. Also, neither the debtor nor the trustee in the instant case was a party to the lawsuit pending in the U.S. District Court for the District of Washington. Therefore, Lees-Carney’s answer and counterclaim in the River Grain, Inc. litigation does not constitute written notice to the trustee of the nature and amount of the claim. Lees-Carney next argues that Bankruptcy Rule 5005(b) does not require an intent to file the proof of claim in the district in which the bankruptcy case is" }, { "docid": "1271163", "title": "", "text": "said to have acted with an expectation that it will receive an official response, has done so with the intent that the paper is being “filed”. The sender is simply in error, however, because the paper should have been filed with the bankruptcy court. The sender has thus intended to file, but has erroneously delivered the paper to the trustee. 798 F.2d at 1288, 14 B.C.D. at 1398. In the instant ease, the misdelivery exception of Rule 5005(b) has not been met even under the very liberal interpretation given the Rule by the Ninth Circuit. There is no indication that the Foreclosure Documents or the letter to the Debtor’s attorney were ever intended by the Bank to become a part of the bankruptcy proceedings or that any sort of official reaction was anticipated. In any event, this Court generally finds more persuasive the construction the Seventh Circuit has given Rule 5005(b) in Matter of Evanston Motor Co, Inc., 735 F.2d 1029, 10 C.B.C.2d 1137, (7 Cir.1984). There the Court held that even if a letter sent to the trustee met the requirements for a proof of claim, the misfiling exception had not been met where the sender had not actually intended that the letter be filed. The Seventh Circuit interpreted the language now appearing in Rule 5005(b) (unchanged from earlier Rule 509(c) considered by that Court) to be limited to those situations where a paper was erroneously delivered to, rather than merely received by, the trustee. This Court recognizes that trustees could receive certain papers as the result of mis-delivery that the sender may have intended to file with the Court or at least bring to the attention of the Court. However, in the instant case, the Court finds no intent by the Bank in writing to Debtor’s counsel, in moving to lift stay, or in filing foreclosure documents in state court, to bring a demand against the Debtor’s estate to the attention of the Bankruptcy Court, as is required for informal claimant status. See, e.g. In re Haugen Constr. Servs. Inc, 88 B.R. at 217-18; In re Mitchell, 82" }, { "docid": "16513126", "title": "", "text": "the proof of claim that was filed on January 24,1994. The doctrine of the “informal proof of claim” is well established in the Ninth Circuit, which has “long applied the so-called rule of ‘liberality in amendments,’ In re Patterson-MacDonald Shipbldg. Co., 293 F. 190, 191 (9th Cir.1923); Sun Basin Lumber Co. v. United States, 432 F.2d 48, 49 (9th Cir.1970) (per curiam)”, County of Napa v. Franciscan Vineyards, Inc. (In re Franciscan Vineyards), 597 F.2d 181, 182 (9th Cir.1979) (per curiam), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980) (“Franciscan Vineyards ”). Under this doctrine, a timely informal proof of claim may be later amended by the filing of a formal proof of claim after the bar date. In order for a timely informal proof of claim to exist: ... “there must have been presented, within the time limit, by or on behalf of the creditor, some written instrument which brings to the attention of the court the nature and amount of the claim.” Perry v. Certificate Holders of Thrift Savings, 320 F.2d 584, 590 (9th Cir.1963). Franciscan Vineyards, at 183. In Franciscan Vineyards (a case under the former Bankruptcy Act), the creditor sent a letter to the bankruptcy trustee prior to the bar date, enclosing tax bills owed by the bankrupt — the Ninth Circuit found the letter to constitute an informal proof of claim, and also held that delivery of the letter to the trustee was sufficient and it was unnecessary for the letter to be filed with the court. Informal proofs of claim have continued to be recognized under the Bankruptcy Code, see: Anderson-Walker Industries, Inc. v. Lafayette Metals, Inc. (In re Anderson-Walker Industries, Inc.), 798 F.2d 1285 (9th Cir.1986) (letter to counsel for Chapter 7 trustee prior to claims bar date, stating that creditor was owed a certain amount and expected to be paid by the estate; the letter was held to constitute an informal proof of claim even though it was not filed with the bankruptcy court); Sambo’s Restaurants, Inc. v. Wheeler (In re Sambo’s Restaurants, Inc.), 754 F.2d 811 (9th" }, { "docid": "1271162", "title": "", "text": "was intended to and did set out a claim against the estate, and that an informal proof of claim need not appear on the bankruptcy court’s records or in its files. The Ninth Circuit in Sambo’s stated that even under the stricter interpretation by the Seventh Circuit in Evanston Motor Co., infra, the exception was met because the joint motion to transfer the complaint to the bankruptcy court demonstrated the creditor’s attempt to file her proof of claim with the bankruptcy court. The Ninth Circuit offered further explanation of its position on Rule 5005(b). In Anderson-Walker Industries, Inc., 798 F.2d 1285, 14 B.C.D. 1395 (9 Cir.1986), the Court • stated that Rule 5005(b) only requires an intent to file the paper and an erroneous delivery to an official, i.e., that the creditor intended for the paper to become a part of the bankruptcy court proceedings and to receive official action. The Court reasoned that a creditor who sends a paper to a court appointed trustee or other official, under circumstances that the sender can be said to have acted with an expectation that it will receive an official response, has done so with the intent that the paper is being “filed”. The sender is simply in error, however, because the paper should have been filed with the bankruptcy court. The sender has thus intended to file, but has erroneously delivered the paper to the trustee. 798 F.2d at 1288, 14 B.C.D. at 1398. In the instant ease, the misdelivery exception of Rule 5005(b) has not been met even under the very liberal interpretation given the Rule by the Ninth Circuit. There is no indication that the Foreclosure Documents or the letter to the Debtor’s attorney were ever intended by the Bank to become a part of the bankruptcy proceedings or that any sort of official reaction was anticipated. In any event, this Court generally finds more persuasive the construction the Seventh Circuit has given Rule 5005(b) in Matter of Evanston Motor Co, Inc., 735 F.2d 1029, 10 C.B.C.2d 1137, (7 Cir.1984). There the Court held that even if a letter" }, { "docid": "1271161", "title": "", "text": "has been noted thereon, be transmitted forthwith to the clerk of the bankruptcy court. In the interest of justice, the court may order that the paper shall be deemed filed as of the date of the original delivery. Bankruptcy Rule 5005(b). The Bank relies heavily on In re Sambo’s Restaurants, Inc., 754 F.2d 811, 12 C.B. C.2d 173, 12 B.C.D. 1177 (9 Cir.1985), where a widow’s wrongful death action in a U.S. District Court in Alabama together with her joint motion with the Debtor to transfer the action to U.S. Bankruptcy Court in California were found to constitute an informal proof of claim. The Ninth Circuit construed Rule 5005(b) to find that the misdelivery exception had been met, relying on its earlier decision in In re Franciscan .Vineyards, Inc., 597 F.2d 181, 5 B.C.D. 476 (9th Cir.1979) (per curiam), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980). Franciscan Vine yards had held that a letter to the trustee enclosing delinquent tax bills was a sufficient informal proof of claim because it was intended to and did set out a claim against the estate, and that an informal proof of claim need not appear on the bankruptcy court’s records or in its files. The Ninth Circuit in Sambo’s stated that even under the stricter interpretation by the Seventh Circuit in Evanston Motor Co., infra, the exception was met because the joint motion to transfer the complaint to the bankruptcy court demonstrated the creditor’s attempt to file her proof of claim with the bankruptcy court. The Ninth Circuit offered further explanation of its position on Rule 5005(b). In Anderson-Walker Industries, Inc., 798 F.2d 1285, 14 B.C.D. 1395 (9 Cir.1986), the Court • stated that Rule 5005(b) only requires an intent to file the paper and an erroneous delivery to an official, i.e., that the creditor intended for the paper to become a part of the bankruptcy court proceedings and to receive official action. The Court reasoned that a creditor who sends a paper to a court appointed trustee or other official, under circumstances that the sender can be" }, { "docid": "18767757", "title": "", "text": "ways a creditor may manifest the necessary demand and intent to hold the estate liable. See, Levine v. First National Bank of Lincolnwood (In re Evanston Motor Co., Inc.), 26 B.R. 998 (N.D.Ill.1983) and cases cited at page 1001. Pleadings filed either in the bankruptcy case itself or filed in other litigation to which the debtor or trustee is a party have been held to be informal claims. See, Pizza of Hawaii, Inc. v. Shakey’s, Inc. (In re Pizza of Hawaii, Inc.), 761 F.2d 1374 (9th Cir.1985) (relief from stay motion and other documents filed with court during claims filing period); In re Sambo’s Restaurants, Inc., 754 F.2d 811 (9th Cir.1985) (wrongful death complaint filed in violation of automatic stay and joint motion with debtor to transfer case to bankruptcy court constitutes informal claim). While other courts have looked to a creditor’s actions outside the bankruptcy case, this court finds the better rule to be that proceedings not filed in the bankruptcy case should not be considered when determining the existence of an informal claim. It is unfair to the debtor and other creditors to hold them knowledgeable of actions taken outside the bankruptcy case itself. Therefore, we look only to the motion for relief from stay which was filed in the bankruptcy case and the Sukmans’ state court foreclosure proceedings will not be considered. The Sukmans’ motion for relief from stay and abandonment sets forth the nature of their claim and its amount. It fails, however, to evidence an intent to hold the estate liable. The debtor contends that, in order to qualify as an informal claim, the Sukmans’ motion required a specific declaration of intent to hold the estate liable. Contrary to this contention, courts have held that intent to hold the estate liable may be implicit. Sun Basin Lumber Co. v. United States, 432 F.2d 48 (9th Cir.1970); County of Napa v. Franciscan Vineyards, Inc. (In re Franciscan Vineyards, Inc.), 597 F.2d 181 (9th Cir.1979) cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980). However, no such implication is found here. The actions of" } ]

[ { "docid": "5011261", "title": "", "text": "the medical-vocational regulations are reasonably related to the purposes of the statute and that defendant has not exceeded the scope of its authority under § 405(a). As indicated more fully below, the Court further finds that the specific contentions asserted by plaintiff are without substantial merit and must be rejected. Plaintiff contends that the agency’s administrative notice of materials contained in studies and treatises constitutes an improper substitution for its burden of proof in cases in which it is determined that a claimant is unable to perform his or her previous work. The agency concedes that in such cases it has an obligation to demonstrate the availability of jobs that the claimant has the functional and vocational capacity to perform. See, e. g., Gray v. Finch, 427 F.2d 336 (6th Cir. 1970). As defendant correctly notes, however, the regulations are consistent with this judicial burden because they require complete consideration of a claimant’s individual circumstances. In place of vocational testimony that jobs exist or do not exist that a claimant can perform, the regulations have incorporated extensive information from the same sources that a vocational expert would utilize. In addition, this information is specifically related to previous individualized findings with respect to a claimant’s functional and vocational capacity. Thus the regulations meet the agency’s burden in a manner that may afford more consistent and uniform results. In support of his position that the regulations create an irrebuttable presumption, plaintiff relies on Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973). In Vlandis the Supreme Court struck down a Connecticut statute defining residency for purposes of university tuition rates on the ground that it created an irrebuttable presumption and thus violated due process principles. The short answer to this theory is that the regulations do not create any presumption that requires the exclusion of relevant, rebuttal evidence, but rather direct a conclusion that is based on consideration of all relevant factors and evidence. Claimants are given full opportunity to submit proof on each of the underlying, adjudicative facts. For example, a claimant can attempt to “rebut” or" } ]

[ { "docid": "22864826", "title": "", "text": "he must direct interrogatories to each physician to obtain a more substantiated opinion as to O’Leary’s capabilities. See Woodard v. Schweiker, 668 F.2d 370, 374 (8th Cir.1981). The burden is on the Secretary to show that this claimant is able to perform the requisite acts of sedentary work day in and day out in the competitive conditions of work in the real world, and O’Leary is entitled to a fair evaluation of her capabilities. Simonson v. Schweiker, supra, 699 F.2d at 428-429; Cole v. Harris, supra, 641 F.2d at 614; Rhines v. Harris, 634 F.2d 1076, 1079 (8th Cir.1980). III. Availability of Other Work. The ALJ’s third error involves his reliance on deficient vocational expert testimony with respect to the availability of jobs in the national economy which the claimant could perform. The ALJ recognized that expert testimony was required since O’Leary “has been precluded from performing the full range of sedentary work activity, based upon the functional and physical restrictions set forth in the medical evidence.” There is also evidence that O’Leary suffers from a significant nonexertional impairment, as she testified that she is in constant pain. Nicks v. Schweiker, supra, 696 F.2d at 636; Tucker v. Schweiker, supra, 689 F.2d at 780. Thus, Table No. 1 in Appendix 2 of the Medical-Vocational Guidelines, which applies to claimants who can perform sedentary work activity, could not be used to meet the Secretary’s burden of showing there were jobs in the national economy that O’Leary could perform. In this case, the Secretary was required to produce vocational expert testimony concerning whether there were jobs available that a person with O’Leary’s particular impairments could perform. See id.; McCoy v. Schweiker, supra, 683 F.2d at 1146; Appendix 2, supra, 20 C.F.R. § 201.00(h) (1982). The AU did receive testimony from a vocational expert on this issue, but the expert’s testimony does not constitute substantial evidence, since the question which the ALJ asked the expert did not include any mention of O’Leary’s pain. At the first administrative hearing, the ALJ asked the vocational expert, Mr. Robert Hopkins, to assume that O’Leary’s testimony concerning" }, { "docid": "23384070", "title": "", "text": "conclusion is based on a careful review of the medical record, which reveals an essential paucity of objective findings, as well as by claimant’s appearance, demeanor, and testimony at the hearing. (Tr. 154). The ALJ summarized Stewart’s testimony concerning his dependence on pain killing drugs. He apparently found it credible. (Tr. 150). He then considered the testimony of Pitts, the vocational expert. He noted “Pitts indicated that if claimant’s drugs affected him as alleged, then he obviously could not perform the job duties described.\" (Tr. 151). Ultimately he concluded that the claimant could perform the jobs described by the vocational expert at the hearing. (Tr. 155). This conclusion can only have been reached if the ALJ rejected Stewart’s testimony concerning the effects the drugs had on him, as conditionally confirmed by the Secretary’s own vocational expert, Pitts. The ALJ made no explicit finding on this point. DISCUSSION A reviewing court must accept findings of fact by the Secretary if those findings are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasoning mind might accept as adequate to support a conclusion. Smith v. Califano, 637 F.2d 968, 970 (3d Cir.1981); Lewis v. Califano, 616 F.2d 73, 76 (3d Cir. 1980). This standard is set so that the appellate court can perform its statutory function of judicial review and at the same time avoid undue interference in the administrative functions which are the province of the Secretary. We require that an Administrative Law Judge do more than simply state ultimate factual conclusions. Hargenrader v. Califano, 575 F.2d 434 (3d Cir.1978). The ALJ must include subsidiary findings to support the ultimate findings. Id. at 438. Additionally, we require from the ALJ “not only an expression of the evidence s/he considered which supports the result, but also some indication of the evidence which was rejected. In the absence of such an indication, the reviewing court cannot tell if significant probative evidence was not credited or simply ignored.” Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.1981). As noted in Gober v. Matthews, 574 F.2d 772 (3d Cir. 1978), [U]nless the" }, { "docid": "22226875", "title": "", "text": "findings either as to the skills required by Mrs. Hall’s past jobs or their transferability, these must be made on the basis of further evidentiary proceedings on remand. In making such findings, the ALJ may, and ordinarily should, require the testimony of a vocational expert. Phillips v. Harris, 488 F.Supp. 1161, 1167-69 (W.D.Va.1980). Under the new regulations, the ALJ is “expected to make the ultimate determinations as to the skill levels of a claimant’s vocationally relevant past jobs and the relationship of those skills to potential occupations,” 43 Fed.Reg. 55,349, 55,361 (1978), and requiring the testimony of a vocational expert is discretionary. Id. at 55,362. While this court has recognized the discretion of the ALJ in requiring vocational expert testimony, McLamore v. Weinberger, 538 F.2d at 575, we have held that this is the preferred method of proving alternate employability, a process which requires evaluating past work experience. Smith v. Califano, 592 F.2d 1235 (4th Cir. 1979). In addition, we recently have emphasized that in making these critical determinations “the ALJ is not qualified to provide affirmative vocational evidence,” and in doing so, misperceives his role. Wilson v. Califano, 617 F.2d 1050, 1053-54 (4th Cir. 1980). On remand, the ALJ should give consideration to the expressed views of this court on the appropriate procedures for assessing Mrs. Hall’s past work skills and their transferability. IV Mrs. Hall also questions the Secretary’s use of the tables in Appendix 2 to meet the second component of his burden: showing the existence of specific types of jobs which are available in the national economy and are suitable for this claimant. The tables provide a means for meeting this burden by taking administrative notice of the existence of unskilled jobs at various functional levels. When a particular rule is applicable, the Secretary is relieved under this regulatory scheme from any burden to identify specific alternative jobs. This court, with others, has “agreed that the Secretary may administratively notice the existence of such jobs in the economy, [but] facts pertaining to the capacity of a specific individual can be supplied only by particularized proof.” Taylor" }, { "docid": "22864813", "title": "", "text": "preclude the claimant from performing other work. Once the claimant’s capabilities are established, the second aspect of the Secretary’s burden is to demonstrate that there are jobs available in the national economy that realistically suit the claimant’s qualifications and capabilities. McMillian v. Schweiker, supra, 697 F.2d at 221; Cole v. Harris, 641 F.2d 613, 614 (8th Cir.1981). In determining whether there are jobs available that a claimant can perform, the Secretary must consider the claimant’s exertional and nonexertional impairments, together with the claimant’s age, education, and previous work experience. McMillian v. Schweiker, supra, 697 F.2d at 221; McCoy v. Schweiker, supra, 683 F.2d at 1146-1148. If the claimant’s characteristics identically match those contained in the Medical-Vocational Guidelines, Appendix 2, Subpart P, Part 404, Chapter III, Title 20 of the Code of Federal Regulations, 20 C.F.R. §§ 200.00-204.00 (1982) (hereinafter Appendix 2), the Secretary may meet the burden of showing there are jobs in the national economy that the claimant can perform by applying the “grid.” If the claimant’s characteristics do not match those in the regulations — either because the claimant is suffering from a nonexertional impairment or is precluded from doing the full range of a particular work classification or for any other reason — the Secretary is required to produce vocational expert testimony concerning whether there are jobs available that a person with the claimant’s particular characteristics can perform. See McDonald v. Schweiker, supra, 698 F.2d at 364-365; Nicks v. Schweiker, 696 F.2d 633, 636 (8th Cir.1983); Tucker v. Schweiker, 689 F.2d 777, 780 (8th Cir.1982); McCoy v. Schweiker, supra, 683 F.2d at 1147-1148. Because there is no dispute that O’Leary cannot return to her previous work, on remand the evidence in the record must be evaluated with the burden placed on the Secretary to prove that the claimant, despite her diminished capabilities, can perform other work in the national economy. II. The Claimant’s Capabilities. The ALJ’s second error concerns his evaluation of O’Leary’s capabilities, particularly his evaluation of her pain. The AU stated that O’Leary’s testimony regarding her pain was “substantially rejected as a basis for disability" }, { "docid": "22269462", "title": "", "text": "disabled within the meaning of the statute. Once the claimant has established an inability to return to his past relevant work, the burden of going forward with evidence shifts to the Secretary to show other jobs in the economy that the claimant is capable of performing. Where an exertional impairment is demonstrated, the Secretary may fulfill this burden-by reference to the medical-vocational guidelines contained in the Secretary’s regulations. 20 C.F.R. Section 404, Subpart P, Appendix 2; McCoy v. Schweiker, 683 F.2d 1138, 1141 (8th Cir.1982). The Secretary may not rely on these guidelines if the record indicates that the claimant suffers from a nonexertional impairment. 683 F.2d at 1148. In such cases, and in cases of exertional impairments which do not fit within the guidelines, the Secretary must use vocational expert testimony or other similar evidence in order to meet her burden of showing there are jobs in the national economy which the claimant is capable of performing. Id. It is apparent from the record that the ALJ found Parsons to be incapable of returning to his past relevant work as a pharmacist. D.R. at 11. After making this finding, the AU should have shifted the burden of going forward with evidence to the Secretary to demonstrate, through vocational expert testimony, jobs in the national economy which the claimant was capable of performing. See Smith, supra. This, however, was not done. The ALJ terminated his analysis with a finding that Parsons was not severely impaired. The Secretary argues that the court may not consider any medical, psychological, or psychiatric evaluations made after the expiration of the claimant’s insured status. We do not agree. While the Secretary is correct insofar as she contends that such evaluations must relate to the claimant’s condition prior to the expiration of his insured status, the mere fact that the examination was made following the expiration of insured status does not automatically make the examination irrelevant. In this case, there are strong correlations between the three most extensive psychological evaluations of Parsons, those of September 19, 1980, December 14, 1981 and May 3, 1982. While the" }, { "docid": "23417699", "title": "", "text": "examination conducted on September 10, 1979. Because the AU found, based on the above-cited evidence, that Tucker cannot return to his previous work, the burden shifted to the Secretary to show that there is other substantial gainful activity that Tuckér can perform. Martin v. Harris, 666 F.2d 1153, 1155 (8th Cir. 1981); Stone v. Harris, 657 F.2d 210, 211 (8th Cir. 1981); Beasley v. Califano, 608 F.2d 1162, 1166 (8th Cir. 1979). The ALJ held that this burden had been met by application of the Secretary’s Medical-Vocational Guidelines, 20 C.F.R. §§ 404.1501 et seq. The ALJ found that the claimant is a “younger individual” with a “limited education” whose prior work experience was “unskilled.” He further found that Tucker has the residual functional capacity for light work. Applying Rule 202.17 of the Guidelines to these findings, the ALJ held that a conclusion of “not disabled” was required. See 20 C.F.R. Part 404, Subpart P, Appendix 2, § 202.17 (1982). The ALJ erred in holding that the Guidelines direct that Tucker be found “not disabled.” The ALJ found that Tucker suffered from a nonexertional impairment — a schizoid personality — as well as being physically limited by his back and lung ailments. As we have recently emphasized, the Guidelines are predicated on a claimant’s physical capacity for work and they do not account for the fact that certain jobs available to persons with the claimant’s physical capacity may “be contraindicated by [his] nonexertional limitations.” 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(e)(2). See McCoy v. Schweiker, 683 F.2d 1138, 1148 (8th Cir. 1982). Under these circumstances, the Guidelines cannot take the place of vocational expert testimony addressed to the question of what jobs a person with Tucker’s physical and mental limitations can perform. See id. at 1149. In the absence of such testimony here, we cannot find that the Secretary met his burden of showing that Tucker can engage in substantial gainful activity. See Poe v. Harris, 644 F.2d 721, 722-723 (8th Cir. 1981); Garrett v. Richardson, 471 F.2d 598, 603-604 (8th Cir. 1972), cited with approval in McCoy" }, { "docid": "612821", "title": "", "text": "to perform his former job, the burden shifts to the Secretary to prove that there is some other kind of substantial gainful employment he is able to perform, Chicager v. Califano, 574 F.2d 161 (3rd Cir.1978), taking into consideration the claimant’s physical ability, age, education and work experience. 42 U.S.C. 423(d)(2)(A); 20 C.F.R. § 404.1520(f) (1986). In the instant case, the Secretary found both that Kangas had a severe impairment and that he was unable to perform his past relevant work. Although the Secretary found that there were other jobs in the national economy that Kangas could perform, Kangas urges on appeal that the Secretary nevertheless did not sufficiently carry his burden of proving that there is some other kind of substantial gainful employment that he is able to perform. We will now address Kangas’ contention that, because of his frequent need for hospitalizations, he cannot engage in any work activity on a sustained basis. The regulations defining residual functional capacity direct the Secretary to determine a claimant’s capacity for work on a “regular and continuing basis.” 20 C.F.R. Regulations No. 4, Subpt. P, § 404.-1545(b) (1986) (emphasis added). Similarly, the Medical-Vocational Guidelines for sedentary work refer to an individual’s “maximum sustained work capability.” 20 C.F.R. Regulations No. 4, Subpt. P, Appendix 2, § 201 (1986) (emphasis added). Kan-gas contends that there was no substantial evidence to show that he is able to engage in any work on a “sustained,” “regular” or “continuing” basis. Before the Secretary was evidence that Kangas had been hospitalized six times in a sixteen-month period for problems with his lungs. The medical advisor, in uncontro-verted testimony, stated that Kangas “has had frequent lung infections requiring hospitalization, sometimes every two to three months.” Admin.Tr. at 14 (emphasis added). Each hospitalization requires a subsequent one to two week recovery period at home. Id. Despite this evidence, the Secretary found that Kangas could engage in substantial gainful activity because there was a wide range of sedentary work that he could perform. We believe that the Secretary failed to consider Kangas’ frequent need for hospitalization in his finding that" }, { "docid": "6148917", "title": "", "text": "any particular claimant to do meaningful work. The Court of Appeals in Wroblewski v. Califano, 609 F.2d 908, 913 (8th Cir. 1979), noted the need for a vocational expert to address “precisely” the issue of available work and further stated: [o]nly when all claimed impairments are considered by the vocational expert within the scope of a propounded hypothetical question can he or she make a proper analysis as to the claimant’s ability to engage in ’ significant gainful activity. Id. at 914. In addition, Stephens v. Secretary of Health, Education and Welfare, 603 F.2d 36, 41-42 (8th Cir. 1979), describes the kinds of hypothetical questions that will enable a vocational expert accurately to assess whether jobs exist for a particular claimant. This Court is persuaded that in order to provide the particularized proof sufficient to resolve this issue, the need for the testimony of a vocational expert remains. Accordingly this Court holds that the requirements of Garrett are not met by the application of Social Security regulations embodied in 20 C.F.R. Part 404, Subpart P, Appendix 2, §§ 200.00-204.00 (1979), without more. The regulations may be an aid to decision once the testimony of the vocational expert is received, but in view of the strong precedents in this Circuit, this Court is unwilling to hold that the regulations are so conclusive that the necessity for calling a vocational expert may be dispensed with altogether. The decision of the Secretary will be vacated, and the cause remanded to the Secretary of Health and Human Services for further proceedings not inconsistent with this opinion. . The Fourth Circuit in Hicks v. Califano, 600 F.2d 1048, 1050 (4th Cir. 1979), has approved the use of the newly promulgated regulations cited above, but in Hicks a vocational expert had already testified. The regulations were to be used only to evaluate the case in the light of that testimony and the other evidence presented. Thus, Hicks should not read as eliminating the need for the testimony of a vocational expert. Indeed, Phillips v. Harris, 488 F.Supp. 1161 (W.D.Va.1980), from a district court in the Fourth" }, { "docid": "2603228", "title": "", "text": "performing the full range of sedentary work activity. Therefore, the AU properly relied on the Medical-Vocational Guidelines in determining Bolton was not disabled under the Social Security Act. Bolton also argues that because she had a vocational expert testify on her behalf, she offered better evidence of a disability and the AU erred in rejecting such testimony. Bolton’s contention that the AU improperly rejected testimony from a vocational expert is inaccurate. The vocational expert did not actually testify at the hearing; however, the vocational expert’s evaluation report was made part of the record and was considered by the AU. “Conflicts in the evidence are to be resolved by the Secretary, not the courts.” Janka v. Secretary of Health, Education & Welfare, 589 F.2d 365, 369 (8th Cir.1978). After carefully reviewing the record, we conclude the Secretary’s decision denying Bolton’s claim for disability benefits is supported by substantial evidence. Accordingly, we affirm the judgment of the district court. . The Honorable George Howard, Jr., United States District Judge for the Eastern District of Arkansas. . The AU specifically determined that although Bolton had a significant vascular condition, it did not meet or equal a listed impairment. The Secretary's regulations provide that if a claimant suffers an impairment which meets the duration requirement and is listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404 or is equal to a listed impairment, the claimant will be determined disabled without considering age, education and work experience. 20 C.F.R. § 404.-1520(d) (1985). . Where a claimant cannot perform past relevant work, the Secretary must show there are other jobs in the national economy that the claimant is capable of performing. Tucker v. Heckler, 776 F.2d 793, 795 (8th Cir.1985). This burden may be met by reference to the Guidelines if the claimant suffers solely from exertional impairments. Id. it, however, the claimant suffers from a combination of exertional and nonexertional impairments and the Guidelines indicate that he or she is not entitled to a finding of disability based solely on exertional impairments, the AU must then consider the extent to which the" }, { "docid": "6678545", "title": "", "text": "Camp v. Schweiker, 643 F.2d 1325, 1332 (8th Cir.1981) (citing Wroblewski v. Califano, 609 F.2d 908, 912-913 (8th Cir.1979)); Cole v. Harris, 641 F.2d 613, 614 (8th Cir.1981); Warner v. Califano, 623 F.2d 531, 532 (8th Cir.1980). Second, the ALJ relied solely on the Medical-Vocational Guidelines, codified as Subpart P, Part 404, Chapter III, Title 20 of the Code of Federal Regulations, 20 C.F.R. §§ 404.1501 et seq., to find that Mrs. Nicks was “not disabled” even though there was substantial evidence of a nonexertional impairment — pain. See Gagnon v. Secretary of HHS, 666 F.2d 662, 666 n. 8 (1st Cir.1981), cited in McCoy v. Schweiker, 683 F.2d 1138, 1148 (8th Cir.1982). In McCoy v. Schweiker, 683 F.2d 1138 (8th Cir.1982), we noted that the Guidelines are predicated on a claimant’s physical capacity for work, and if a claimant has a nonexertional impairment, the Guidelines and grid “are not controlling and cannot be used to direct a conclusion of disabled without regard to other evidence, such as vocational testimony.” Id. at 1148 (citing Appendix 2, § 200.-00(e)). See Tucker v. Schweiker, 689 F.2d 777, 780 (8th Cir.1982). Because Mrs. Nicks presented evidence that she suffers from disabling pain as well as other physical impairments, the Guidelines cannot take the place of vocational expert testimony addressed to the question of what jobs a person with Mrs. Nicks’ physical limitations and degree of pain can perform. See Tucker v. Schweiker, supra, 689 F.2d at 780; McCoy v. Schweiker, supra, 683 F.2d at 1149. There was no such testimony by a vocational expert in this case; thus, the Secretary has not met the burden of showing that Mrs. Nicks can engage in substantial gainful activity. Accordingly, the decision of the district court is reversed and remanded with directions to remand to the Secretary to either grant Mrs. Nicks her requested benefits or to hold an additional hearing. If another hearing is held, the claimant should be given the opportunity to testify so that the ALJ can effectively judge her credibility. Mrs. Nicks must also be allowed to present any further medical evidence" }, { "docid": "6678544", "title": "", "text": "nurse or nurses’ aide.” As to Mrs. Nicks’ “chronic severe disabling pain,” the AU found “that the preponderance of the relevant credible medical evidence fails to support the presence of pain to the degree alleged by the claimant * * * and, consequently, the claimant’s allegations of such pain is [sic] found to lack credibility.” Apart from the extensive evidence in the record which supports the appellant’s position regarding the nature and extent of her pain, we find two other reasons why the district court’s decision affirming the Secre tary’s determination must be reversed: First, even though the ALJ found that Mrs. Nicks could not return to her previous occupation as a nurses’ aide, the burden of proof was never shifted to the Secretary to establish that she could perform other work. This Court has consistently held that once it is determined that a claimant cannot return to the work he or she previously performed, the burden shifts to the Secretary to prove that the claimant can perform other work in the economy. See, e.g., Camp v. Schweiker, 643 F.2d 1325, 1332 (8th Cir.1981) (citing Wroblewski v. Califano, 609 F.2d 908, 912-913 (8th Cir.1979)); Cole v. Harris, 641 F.2d 613, 614 (8th Cir.1981); Warner v. Califano, 623 F.2d 531, 532 (8th Cir.1980). Second, the ALJ relied solely on the Medical-Vocational Guidelines, codified as Subpart P, Part 404, Chapter III, Title 20 of the Code of Federal Regulations, 20 C.F.R. §§ 404.1501 et seq., to find that Mrs. Nicks was “not disabled” even though there was substantial evidence of a nonexertional impairment — pain. See Gagnon v. Secretary of HHS, 666 F.2d 662, 666 n. 8 (1st Cir.1981), cited in McCoy v. Schweiker, 683 F.2d 1138, 1148 (8th Cir.1982). In McCoy v. Schweiker, 683 F.2d 1138 (8th Cir.1982), we noted that the Guidelines are predicated on a claimant’s physical capacity for work, and if a claimant has a nonexertional impairment, the Guidelines and grid “are not controlling and cannot be used to direct a conclusion of disabled without regard to other evidence, such as vocational testimony.” Id. at 1148 (citing Appendix" }, { "docid": "18642565", "title": "", "text": "method of proving what particular job the claimant can perform, although there is no blanket requirement that it be obtained. See, e. g., Hall v. Secretary of H.E.W., 602 F.2d 1372, 1377 (9th Cir. 1979) (“A general statement that a claimant may engage in ‘sedentary work’ without testimony by a vocational expert who can identify specific jobs, absent other reliable evidence of the claimant’s ability to engage in other occupations, does not satisfy the substantial evidence test... . Although there is no per se rule that a vocational expert’s evaluation is necessary. . . .”) O’Banner v. Secretary of H.E.W., 587 F.2d 321, 323 (6th Cir. 1978); Taylor v. Weinberger, 512 F.2d 664 (4th Cir. 1975); Garrett v. Richardson, 471 F.2d 598, 603-04 (8th Cir. 1972) (the burden of providing a vocational counselor to determine if there are jobs in the national economy should rest with the hearing examiner, “and in the absence of substantial evidence from sources bearing directly on the issue of substantial gainful activity, the testimony of a vocational counsel is essential for the affirmance of an examiner’s findings.”); Flores v. Dept. of H.E.W., 465 F.Supp. 317, 324 (S.D.N.Y.1978); Kenny v. Weinberger, 417 F.Supp. 393, 398 (E.D.N.Y.1976). The Hall case, though not involving the new regulations and tables, suggests that the vocational expert can be used in order to prove the plaintiffs ability to perform “sedentary work” within the meaning of the new regulations. Whether the new regulations and tables preclude the need for a vocational expert to testify once a “decision” under the new regulations that the claimant is “not disabled” is made is not a settled issue. Compare Vega v. Harris, 636 F.2d 900 (2d Cir. 1981); Stallings v. Harris, 493 F.Supp. 956 (W.D.Tenn.1980); Boyce v. Harris, 492 F.Supp. 751, 752 (D.S.C.1980); Crowe v. Harris, 489 F.Supp. 683, 689 (E.D.Tenn.1980); with Phillips v. Harris, 488 F.Supp. 1161, 1166-67 (W.D.Va.1980), and we need not address it in the context of this motion. . The contents of the medical reports, as summarized by defendant, have not been disputed here. See Tr. at 116 — 51; defendant’s Memorandum" }, { "docid": "22226866", "title": "", "text": "education, work experience, skills and physical shortcomings, has the capacity to perform an alternative job and (2) that this specific type of job exists in the national economy. McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976); Taylor v. Weinberger, 512 F.2d 664, 666 (4th Cir. 1975). To regularize the adjudicative process, the Social Security Administration has recently promulgated new and detailed regulations incorporating longstanding medical-vocational evaluation policies that take into account a claimant’s age, education, and work experience in addition to his medical condition. These new regulations were intended both to clarify for claimants how disability is determined, when vocational factors are considered and to assure consistent disability determinations at all levels. 43 Fed.Reg. 55,349, 55,349 (1978). Codified at 20 C.F.R. Subpart P, §§ 404.-1501-.1539 & Apps. 1-2 (1980), they became effective February 26, 1979 and governed the ALJ’s decision in this case. These regulations establish a “sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R. § 404.1503 (1980). If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 404.1503(a). Under the process the ALJ must determine in sequence: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether he has a severe impairment; (3) if so, whether that impairment meets or equals the medical criteria of Appendix 1 which warrants a finding of disability without considering vocational factors; and (4) if not, whether the impairment prevents him from performing his past relevant work. By satisfying either step 3 or 4, the claimant establishes a prima facie case of disability. The burden then shifts to the Secretary and leads to the fifth and final inquiry in the sequence: whether the claimant is able to perform other work consider ing both his remaining physical and mental capacities (defined as residual functional capacity) and his vocational capabilities (age, education, and past work experience) to adjust to a new job. When the fifth step in the process is reached, the interrelation of these factors is governed by the rules of Appendix 2 and the remaining regulations, especially" }, { "docid": "18274849", "title": "", "text": "severe impairment, the AU must examine whether or not her impairment falls within those listed in Appendix 1 and thus qualifies automatically for disability benefits. If Plaintiff’s impairment is not delineated in Appendix 1, the AU must determine next whether Plaintiff’s impairment prevents her from doing any work she has done in the past. If claimant cannot do her past relevant work, or has no past relevant work, the AU will consider the Plaintiff’s age, education, past work experience and residual functional capacity to determine whether there is any work in the national economy that she can do. 20 C.F.R. § 404.1561. If there is no work that Plaintiff can do, she will be deemed disabled. Plaintiff bears the burden of proving that her impairment prevents her from doing her previous work. Goodermote v. Secretary of Health and Human Services, 690 F.2d 5, 7 (1st Cir.1982). If she meets this burden, or if she has no past relevant work, 20 C.F.R. § 404.1565, the burden shifts to the Secretary to show that “there are other jobs in the economy that claimant can nonetheless perform.” Goodermote, 690 F.2d at 7; Vasquez v. Secretary of Health and Human Services, 683 F.2d 1, 2 (1st Cir.1982); Small v. Califano, 565 F.2d 797, 800 (1st Cir.1977). “Such a showing is met by reliance on the testimony of a vocational expert, or by applying the relevant medical-vocational guidelines” in 20 C.F.R. § 404 Subpart P, App. 2. Williford v. Secretary of Health and Human Services, 550 F.Supp. 248, 251 (D. Ohio 1982). Since the AU determined that Plaintiff’s impairment was non-exertional, he did not apply the Appendix 2 “Grid,” which regularly supplants the role of the vocational expert in cases of exertional impairments, to Plaintiff’s case. 20 C.F.R. § 404 Subpart P, App. 2, 200.00(e). Torres v. Secretary of Health and Human Services, 677 F.2d 167 (1st Cir.1982). Instead, the AU properly enlisted the services of a vocational expert to determine whether a job existed in the national economy which Plaintiff, given her age, education, work history and mental impairment could perform. 20 C.F.R. §" }, { "docid": "808058", "title": "", "text": "weighed in determining whether there is substantial evidence to support the Secretary’s decision; (1) the objective medical facts; (2) the diagnoses and expert opinions of treating and examining physicians on subsidiary questions of fact; (3) subjective evidence of pain as testified to by the claimant and corroborated by family and neighbors; and (4) the claimant’s educational background, work history, and present age. Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975); Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962). The Medical-Vocational Guidelines found at 20 C.F.R. Part 404 subpart P, Appendix 2, have been held to satisfy the Secretary’s burden of demonstrating the existence of alternative work for a plaintiff who is unable to return to his past relevant jobs because of his exertional impairments. See Stephens v. Harris, 628 F.2d 1353 (5th Cir. 1980) at Footnote 4, p. 6; Jones v. Harris, [Jan. 1980-Sept. 1980 Transfer Binder] Unempl. Ins. Rep. (CCH) ¶ 17,074 (E.D.Tenn.1980); Dinapoli v. Califano, [Jan. 1980-Sept. 1980 Transfer Binder] Unempl. Ins. Rep. (CCH) ¶ 17,073 (E.D.Calif.1980). The Secretary carries his burden of proof by supporting with substantial evidence findings that claimant meets each criterion in a particular rule in Appendix 2. Jones v. Harris, supra. In the instant case, the AU found that the medical evidence established that the plaintiff had degenerative disc disease which prevented him from returning to his former jobs as a fireman or plumber. The ALJ found, however, that the claimant had the residual functional capacity for sedentary work as defined by Section 404.1510(b) of Subpart P of Social Security Administration Regulations No. 4: Sedentary Work. Sedentary work entails lifting 10 pounds maximum and occasionally lifting or carrying such articles as dockets (e. g. files), ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. The ALJ determined that Regulation 404.1513 and Rule 201.24 of Table No. 1 of Appendix 2 to Subpart" }, { "docid": "9407401", "title": "", "text": "exertion. Light work “involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds” and can require “a good deal of walking or standing” and “pushing and pulling of arm or leg controls.” - 20 C.F.R. §§ 404.1567(b) and 416.967(b). The record does support the conclusion that the plaintiff is capable of working at this level. However, the Secretary has the burden of showing that jobs are available to the plaintiff at this level of exertion. To satisfy this burden, “[t]he Secretary has promulgated a set of medical-vocational guidelines (the Grid) ... to simplify the application of the fifth test.” Goodermote, 690 F.2d at 7. The AU assessed the plain tiff’s residual functional capacity, using the Residual Functional Capacity “Grid” for Light Work, set out at 20 C.F.R. Pt. 404, Subpart P, Appendix 2. The AU determined that as a younger individual, with a high school education, two years of college and non-transferrable skills from past employment, the plaintiff fit within Rule 202.-21 of the Grid, and therefore the plaintiff was not disabled. When an individual suffers from a nonexertional impairment such as pain, full consideration must be given to all the relevant facts, and the Grid may be used only as “a framework for consideration of how much the individual’s work capability is further diminished” by the nonexertional limitations. 20 C.F.R. Pt. 404, Subpart P, Appendix 2, Rule 200.00(e)(2). In such a case, “the AU may not mechanically apply the rules contained in the Grid.” DaRosa v. Secretary, 803 F.2d 24, 26 (1st Cir.1986), citing Sherwin v. Secretary of Health and Human Services, 685 F.2d 1, 4 (1st Cir.1982). In the instant case, the record shows that the AU did consider all the medical evidence and the plaintiff’s own testimony regarding his daily routine and residual capacity. The medical-vocational guidelines were used as a framework for determining the plaintiff’s residual functional capacity. A lack of clinical evidence regarding the plaintiff’s back pain was one of the several factors considered by the AU in evaluating the evidence. The finding" }, { "docid": "23323853", "title": "", "text": "capacity may not be available to the claimant because of nonexertional impairments such as pain. See 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(e)(2); McCoy v. Schweiker, supra, 683 F.2d at 1148. Because Simonson presented evidence that he suffered from disabling pain as well as physical impairments, the Guidelines cannot substitute for vocational expert testimony concerning the jobs a person with Simonson’s physical limitations and degree of pain can perform. Tucker v. Schweiker, 689 F.2d 777, 780 (8th Cir.1982); see also McCoy v. Schweiker, supra, 683 F.2d at 1149. The ALJ did consult a vocational expert at Simonson’s hearing. The AU erred, however, in asking the expert to “assume I’d find that claimant has the exertional capacity for light or sedentary work.” Hypothetical questions harboring this assumption have been found defective in a long line of cases. McGhee v. Harris, 683 F.2d 256, 259 (8th Cir.1982); Gilliam v. Califano, 620 F.2d 691, 694 (8th Cir.1980); Stephens v. Secretary of H.E.W., 603 F.2d 36, 41 (8th Cir.1979). The hypothetical questions posed to vocational experts “should precisely set out the claimant’s particular physical and mental impairments.” Tennant v. Schweiker, supra, 682 F.2d at 711 (citations omitted). “The response to a fatally defective question cannot constitute substantial evidence.” McGhee v. Harris, supra, 683 F.2d at 259. Accordingly, the decision of the district court is reversed and remanded with directions to remand to the Secretary to either grant Simonson his requested benefits or to hold an additional hearing. If another hearing is held, the burden is on the Secretary to prove Simonson has the RFC to do some type of job and, through the use of a vocational expert, to prove such jobs have been continuously available since November, 1976, the date the Secretary terminated the original grant of disability benefits. In the interest of providing a fair and full hearing, Simonson should also be allowed to present any further medical evidence relevant to his condition. Finally, the ALJ must give serious consideration to evidence of Simonson’s pain and is not free to disregard subjective reports of pain solely because they are" }, { "docid": "18274850", "title": "", "text": "jobs in the economy that claimant can nonetheless perform.” Goodermote, 690 F.2d at 7; Vasquez v. Secretary of Health and Human Services, 683 F.2d 1, 2 (1st Cir.1982); Small v. Califano, 565 F.2d 797, 800 (1st Cir.1977). “Such a showing is met by reliance on the testimony of a vocational expert, or by applying the relevant medical-vocational guidelines” in 20 C.F.R. § 404 Subpart P, App. 2. Williford v. Secretary of Health and Human Services, 550 F.Supp. 248, 251 (D. Ohio 1982). Since the AU determined that Plaintiff’s impairment was non-exertional, he did not apply the Appendix 2 “Grid,” which regularly supplants the role of the vocational expert in cases of exertional impairments, to Plaintiff’s case. 20 C.F.R. § 404 Subpart P, App. 2, 200.00(e). Torres v. Secretary of Health and Human Services, 677 F.2d 167 (1st Cir.1982). Instead, the AU properly enlisted the services of a vocational expert to determine whether a job existed in the national economy which Plaintiff, given her age, education, work history and mental impairment could perform. 20 C.F.R. § 404.1561. Where the Secretary is required to meet the burden of proving that a job exists in the national economy, she cannot “establish specific vocational ability solely through medical evidence or by ‘administrative notice.’ ” Rather, such evidence should be predicated upon the testimony of a vocational expert. Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir.1980). Since “[t]he vocational expert’s testimony is only useful if it addresses whether the particular claimant, with his limitations and capabilities, can realistically perform a particular job,” Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir.1981), Ms. Mullen, the vocational expert, examined Plaintiffs age, education, work history and her medical impairment. She determined that Plaintiff’s twelfth grade education and her lack of past relevant work or transferrable skills would enable her to do only unskilled work. Ms. Mullen ultimately concluded, however, based on the evidence in the record of Plaintiff’s impairment, that Plaintiff would be unable to work under the conditions present in unskilled jobs. Tr. at 165-166. Since the “preferred method of demonstrating that the claimant can perform" }, { "docid": "22760667", "title": "", "text": "itself takes into account the same sources which a vocational expert would consult in determining whether a particular claimant’s abilities matches a job’s requirements, yet provides greater uniformity with fewer administrative costs. We find that, even though expert vocational testimony is no longer necessary, use of the grid substantially comports with prior case law interpreting the Social Security Act. The courts that have confronted this issue have split widely over the Secretary’s ability to carry the burden of demonstrating the availability of jobs, without use of a vocational expert, by relying on the guidelines. In Boyce v. Harris, 492 F.Supp. 751 (D.S.C.1980), the court noted that one of the purposes of the guidelines was to dispense with the necessity of hearing from a vocational expert for often their testimony conflicted and was always time consuming. “The un derlying rationale of [pre-grid cases requiring expert testimony] seems to have been made obsolete by the new Vocational Factors Regulations . .. . ” Id. at 751. Expert testimony would be duplicative of the information contained in the grid. It should be emphasized that the grid is only used when the components of the grid precisely match the characteristics of the claimant. Thus, the only role the guidelines play is to take administrative notice of the availability of jobs, or lack thereof, for claimants whose abilities are accurately described by the grid. Of course, if the claimant’s characteristics do not fit the grid pattern, then, just as before, expert testimony would be required to satisfy the Secretary’s burden of proof regarding the availability of jobs which this particular claimant can exertion-ally handle. See also Walker v. Harris, 504 F.Supp. 806, 811 (D.Kan.1980) (“We are in agreement with the Secretary that a vocational expert is not necessary when the factors of a claimant’s residual functional capacity, age, education and work experience coincide with the criteria of a rule under the new regulations and the rule directs a conclusion as to whether the individual is or is not disabled.”); Frady v. Harris, 646 F.2d 143 (4th Cir. 1981); New v. Harris, 505 F.Supp. 721, 726" }, { "docid": "22760666", "title": "", "text": "constitute evidence that a person can engage in substantial gainful activity, nor is such a finding sufficient to rebut a prima facie case of disability. A claimant’s capacity to perform work must be evaluated in light of his age, his education, his work experience, and his impairments, including his pain. This requires a finding of capacity to work which is expressed, not in terms of a vague catch-all phrase such as ‘light work’, but in terms of specific types of jobs, (emphasis in original). Hephner, decided before the grid at issue here became the applicable law, does not require rejection of the grid. Hephner’s interpretation and rationale is still applicable and its demands are satisfied by use of the grid. The grid too requires that a claimant’s particular characteristics be evaluated before a disability determination is reached; the grid merely identifies the weight to be given each characteristic found. The grid has displaced the Secretary’s burden of demonstrating which particular jobs the claimant can perform. But, that does not render the regulations invalid. The grid itself takes into account the same sources which a vocational expert would consult in determining whether a particular claimant’s abilities matches a job’s requirements, yet provides greater uniformity with fewer administrative costs. We find that, even though expert vocational testimony is no longer necessary, use of the grid substantially comports with prior case law interpreting the Social Security Act. The courts that have confronted this issue have split widely over the Secretary’s ability to carry the burden of demonstrating the availability of jobs, without use of a vocational expert, by relying on the guidelines. In Boyce v. Harris, 492 F.Supp. 751 (D.S.C.1980), the court noted that one of the purposes of the guidelines was to dispense with the necessity of hearing from a vocational expert for often their testimony conflicted and was always time consuming. “The un derlying rationale of [pre-grid cases requiring expert testimony] seems to have been made obsolete by the new Vocational Factors Regulations . .. . ” Id. at 751. Expert testimony would be duplicative of the information contained in the" } ]

[ { "docid": "3727252", "title": "", "text": "an interest in the content of that data.” Id. at 18 n. 19. The inclusion of section 512(d) which creates a “safe harbor” for copyright infringement resulting from the use of information location tools by service providers, which include directories, indexes, references, pointers and hypertext links, strongly suggests that the definition of service provider is meant to include services that only provide location service tools, as well as services providing internet access and such tools. See H.R. Rep. 105-551(11), at 58 (identifying Yahoo! as an example); cf. also 47 U.S.C. § 231(b)(3)(reaeh of Child Online Protection Act defined by similar categories). The Court adopts that reading and will not use Perfect 10’s proposed interpretation to evaluate Cybernet’s ability to invoke the protection of section 512’s safe harbors. Nevertheless, Cybernet has made this a more complicated issue than it probably should be by its insistence that it does not host any infringing images and no image files pass through any of its computers. Opp’n at 21. This appears to be part of an overall' strategy to deny that Cybernet is anything more than an age verification service, somehow beyond the reach of copyright law, with no responsibility for the actions taken on the sites of the individual webmasters. It may be a close question whether such a service qualifies as a “service provider.” For the moment, however, the Court will assume that Cybernet is a “service provider” as defined in section 512(k). b. Does Cybernet Meet the Minimal Qualifications of Section 512(i)? The initial hurdle Cybernet must meet in order to qualify for section 512(k)’s restrictions on injunctive relief is found in section 512(i). These provisions require an online service provider to develop, promulgate and reasonably implement a policy providing for termination in appropriate circumstances of repeat copyright infring-ers. 17 U.S.C. § 512(i). In crafting these policies, Congress has given a vague indication of what constitutes “appropriate” circumstances. In the House and Senate Reports considering this subsection, both used identical language. See Ellison v. Robertson, 189 F.Supp.2d 1051, 1053-54, 1064-65 (C.D.Cal.2002). The Committees each “recognize[d] that there are different degrees of" } ]

[ { "docid": "16441843", "title": "", "text": "that a large number of the files transferred through Aimster are adult photographs rather than copyrighted music. Oral Arg. at 21. . The court in Fonovisa addressed both con-tributary and vicarious infringement. . Given the DMCA’s relatively recent enactment, there is a dearth of Seventh Circuit precedent interpreting its provisions. . The copyright notice appears to track the irrelevant (for our purposes) notice, take-down, and counter notice procedures of § 512(g). . It is, as we shall see, an absolute mirage, but it is a stated policy nonetheless. . Defendants would not be eligible for the Transitory Communications Safe Harbor for an additional reason. § 512(a)(5) requires that material be \"transmitted through the system or network without modification of its content.” However, by Defendants’ own admission, Aimster does modify the content: \"Aimster encrypts all the information that is transferred between users.” Deep Decl. ¶ 8. This modification further belies the notion of Aimster as a mere conduit. . Notably, however, Deep’s declaration is careful to avoid claiming that Aimster ever caches the actual infringing files. He instead refers to \"data,” \"messages,” and \"attributes.” Deep Decl. ¶ 14. . Defendants would not be eligible for the System Caching Safe Harbor for two additional reasons. First, just like the Transitory Communications Safe Harbor, the System Caching Safe Harbor requires that the material in question be transmitted “through” the Aimster system, § 512(b)(1)(B), when it is not. Second, the material must be transmitted without modification to its content. § 512(b)(2)(A). As noted above in footnote 19, however, Aimster’s encryption scheme belies this assumption. . The third condition of the Information Location Tools Safe Harbor requires the expeditious take-down of infringing material after the service provider receives proper notice from the copyright holder that complies with § 512(c)(3). Because Defendants do not meet the first two conditions, however, we find it unnecessary to delve into this third condition. We note in passing, however, that the notice requirements of § 512(c)(3) probably have not been met by Plaintiffs. The RIAA sent its notice of infringement and cease and desist letters to Deep personally. However, the" }, { "docid": "3727262", "title": "", "text": "does not affect the elements of copyright liability. Instead, it affects the remedies available for any infringement which might be found. The Court will nevertheless address why it believes Cybernet does not comply with the explicit substantive requirements of the DMCA or qualify for either the section 512(c) (“information storage”) or (d) (“information location tool”) safe harbors. 1. Deficiencies In Notice Procedures Both the section 512(c) and (d) safe harbors governing information storage and connecting activity, such as link and search engines, respectively, contain parallel notification and counter-notification requirements in an attempt to balance the duties of service providers, the rights of copyright owners and the rights of other users. In general outline, the notice and take-down provisions work as follows: 1) A copyright owner must contact the service provider and provide written notice meeting certain criteria, see 17 U.S.C. § 512(c)(3); 2) If the notice fails to fully comply with the stated notice requirements, but substantially complies with three requirements aimed at identifying infringing sites, works and users, the service provider must promptly attempt to contact the person complaining or takes other reasonable steps to assist in the receipt of notification that complies with the requirements, see 17 U.S.C. § 512(c)(3)(B); 3) Once notice is received, the service provider must expeditiously remove or disable access to the material and must notify the affected user promptly, see 17 U.S.C. § 512(c)(1)(B); 4) The affected user may then submit a counter-notification consisting of a statement, under penalty of perjury, that the user had a good faith belief that the material was removed as a result of a mistake or misidentification of the material, see 17 U.S.C. § 512(g)(3); and 5) Upon receiving a counter-notification, the service provider has 10-14 days to replace the material unless the provider’s designated agent receives notice that the complaining party has filed a court action, see 17 U.S.C. § 512(2)(C). i. Deviations From Notice Requirements Cybernet’s procedures depart from this statutory scheme in several quite significant ways. First, Cybernet’s policy states that it requires a complaint to meet all its stated notice requirements and there is" }, { "docid": "4811522", "title": "", "text": "to DMCA takedown notifications and does not interfere with copyright owners’ ability to issue such notices. MP3tunes reacted to EMGNA’s and EEW’s notices and removed the links listed on Sideload.com. EMI argues that MP3tunes had an obligation to terminate any user who added multiple links to Sideload.com that appeared on one or more takedown notices. EMI argues that such users are automatic repeat infringers. But, takedown notices themselves are not evidence of blatant infringement and users could not be certain that they had downloaded infringing content. See Viacom, 718 F.Supp.2d at 528; see also CCBill, 488 F.3d at 1113 (holding that takedown notices were not evidence of infringement). Thus, MP3tunes’ decision to refrain from terminating those user accounts was appropriate. Accordingly, there is no genuine dispute that MP3tunes satisfies the threshold requirements to qualify for safe harbor protection under the DMCA. B. Subsections 512(c)(8) and (d)(8)— Compliance with EMI’s Takedown Notices EMI argues that MP3tunes failed to comply with the DMCA takedown notices sent by EMGNA and EEW as required by subsections 512(c)(3) and (d)(3). Specifically, EMI asserts that MP3tunes failed to remove songs from users’ lockers that were sideloaded from specific websites identified in the notices. Subsection 512(c) governs material stored on the service provider’s servers at the direction of a user. 17 U.S.C. § 512(c). This safe harbor potentially applies to MP3tunes’ locker service. Subsection 512(d) governs information location tools, e.g., search engines. 17 U.S.C. § 512(d). This safe harbor potentially applies to Sideload.com. The parties agree that, in relevant part, the eligibility requirements for subsections 512(c) and (d) protection are the same and that each service must independently qualify. The pertinent language of subsections (c) and (d) is as follows: (c) Information Residing on Systems or Networks At Direction of Users.— (1) In general. — A service provider shall not be liable ... for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider— (A) (i) does not have actual knowledge" }, { "docid": "3727261", "title": "", "text": "of Cybernet’s consistent resistance to the proposition that it could, would or should exercise any control over its webmasters, simply not credible. The record supports the conclusion that Cyber-net has taken great pains to avoid shouldering the burdens of the copyright regime, all the while profiting from pirates. Because the Court finds that there is a strong likelihood that Cybernet cannot establish that it has “reasonably implemented” a policy directed at terminating repeat infringers, even in “appropriate circumstances,” there is little likelihood that it can avail itself of section 512’s safe harbors. c. Could Cybernet qualify for the safe harbors if it is a “service provider” and has “reasonably implemented” a repeat infringer policy? Even assuming Cybernet could somehow bring itself over the section 512(k) and (i) hurdles to have its conduct evaluated under sections 512(c) and (d), the Court finds that there is a strong likelihood Perfect 10 will prevail on its copyright claims. First the Court notes that Cybernet’s assertion that these sections could “exempt” Cybernet from liability is without merit. Section 512 does not affect the elements of copyright liability. Instead, it affects the remedies available for any infringement which might be found. The Court will nevertheless address why it believes Cybernet does not comply with the explicit substantive requirements of the DMCA or qualify for either the section 512(c) (“information storage”) or (d) (“information location tool”) safe harbors. 1. Deficiencies In Notice Procedures Both the section 512(c) and (d) safe harbors governing information storage and connecting activity, such as link and search engines, respectively, contain parallel notification and counter-notification requirements in an attempt to balance the duties of service providers, the rights of copyright owners and the rights of other users. In general outline, the notice and take-down provisions work as follows: 1) A copyright owner must contact the service provider and provide written notice meeting certain criteria, see 17 U.S.C. § 512(c)(3); 2) If the notice fails to fully comply with the stated notice requirements, but substantially complies with three requirements aimed at identifying infringing sites, works and users, the service provider must promptly attempt" }, { "docid": "3727315", "title": "", "text": "impose an affirmative duty on service providers to hunt out infringers does not mean, however, that copyright holders cannot investigate potentially infringing activities and notify providers under a \"reasonably implemented” section 512(i) policy. . Section 512(Z) provides that a service provider under subsection (a) may only be restrained from providing access to an infringer by terminating the account or from providing access to a specific, identified online location outside the United States. See 17 U.S.C. 512(Z )(B). There is no ability to order such a provider to take down material, presumably because such material is no longer on the system. See 17 U.S.C. 512(a)(4)(limiting time copy may reside on system to that \"reasonably necessary for the transmission, routing, or provision of connections”). In contrast, service providers, as the term is defined for the other three safe harbor provisions may be restrained from providing access to the material, providing system access to the infringer, or such other injunctive relief as may be considered necessary to restrain infringement at a particular location, if it is the least burdensome form of relief available to the service provider. See 17 U.S.C. § 512(Z)(A). . In response to the unstated premise of Cybernet’s arguments that enforcement of the Copyright Act would hurt its business, but not address the ultimate source of the infringement, the Court finds itself sympathetic to the observation in Playboy v. Webbworld: \"If a business cannot be operated within the bounds of the Copyright Act, then perhaps the question of its legitimate existence needs to,be addressed.” 968 F.Supp. at 1175. see also Napster II, 239 F.3d at 1026 (\"Although even a narrow injunction may so fully eviscerate Napster, Inc. as to destroy its user base ... the business interests of an infringer do not trump a rights holder's entitlement to copyright protection.”) . This case appears to offer an example of such behavior. In Perfect 10’s Third Amended Complaint, it identified a site, www.celeb-pics.com, as one of the problematic Adult Check sites. In its preliminary injunction papers, Perfect 10 now complains about the website www.newcelebpics.com. See Zadeh Decl., Ex. 79. Although issues" }, { "docid": "4451188", "title": "", "text": "to provide access, thereby limiting the “variety and quality of services on the Internet.” Moreover, absent such access copyright owners would find it difficult to located infringing material in order to provide notice in the first place. For all of the reasons stated above the Court concludes that the legislative history supports the application of § 512(c) to the software functions at issue here. D. Relevant case law The parties fiercely dispute the importance of Io Group, Inc. v. Veoh Networks, Inc., 586 F.Supp.2d 1132 (N.D.Cal.2008), a case that addressed one of the four functions at issue here: the automated conversion of videos into the Flash format. Consistent with this Court’s holding, the Io Group court held that Veoh was not “disqualified from Section 512(c)’s safe harbor because of automated functions [ie., creation of Flash files] that facilitate access to user-submitted content on its website.” Id. at 1147 (emphasis added). Because the Court is satisfied that the foregoing analysis is sufficient to decide UMG’s motion in this case, it is not necessary to scrutinize the reasoning of Io Group in order to declare which side’s view as to Io Group is correct. The Court does note that Io Group’s application of § 512(c) to automated functions that facilitate access to user-stored material is consistent with a number of cases finding that the safe harbor limits liability for activities involved in facilitating access to material uploaded at the direction of users. See, e.g., Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d 1090, 1094, 1110 (W.D.Wash.2004) (section 512(c) applies to “any copyright infringement” by vendors who created websites using tools and forms provided by defendant, where defendant did not actively participate in or supervise the uploading of images and did not preview the images); Hendrickson v. Amazon.com, Inc., 298 F.Supp.2d 914 (C.D.Cal.2003) (Hatter, J.) (section 512(c) applies to defendant for the sale of infringing goods on its website by third parties); Hendrickson v. eBay, Inc., 165 F.Supp.2d 1082, 1087-88 (C.D.Cal.2001) (Kelleher, J.) (section 512(c) shields defendant operator of website from liability for third parties’ sale and distribution of infringing material on its site," }, { "docid": "4349039", "title": "", "text": "on Ellison v. Robertson, 357 F.3d 1072, 1080 (9th Cir.2004), which held that AOL had not reasonably implemented its termination policy because the email address of AOL’s copyright agent was inactive and therefore, notifications of copyright infringement went unheeded. Ellison did not hold that notifications of third-party infringements should be considered in determining whether AOL had reasonably implemented its termination policy. Therefore, Perfect 10’s reliance on Ellison is misplaced. . Perfect 10 also argues that Internet Key’s website, sexkey.com, contains ''infringements of celebrities.” I Zadeh Decl., ¶ 13, Exh. 4. However, the printouts of sexkey.com do not contain a single image of a celebrity but merely list their names. Id. The Court fails to see how a list of names can constitute a copyright violation pursuant to 17 U.S.C. § 501(a). Therefore, the Court finds this argument without merit. . Perfect 10 may argue that the fact that it takes three notifications to terminate a webmaster is not sufficient under § 512(i). However, § 512(i) specifically states that the internet service provider must adopt a policy that terminates \"repeat infringers.” In order for an infringer to be a \"repeal” infringer, he or she must infringe at least twice. Therefore, the Court finds that Internet Key’s policy of terminating a webmaster after 3 notifications is reasonable. . The Court notes that Internet Key is asserting the safe harbor provided under § 512(d) which adopts the notification and take down procedures identified in § 512(c)(3)(A). H.R. Rep. 105-551(11), WL at *57. . Internet Key objects to portions of Exhibit 35 of Zadeh’s declaration because some of the pages were not produced until after January 16, 2004, the deadline for the completion of Phase I discovery in this matter. See II Kearney Deck, ¶¶ 11-12. This objection is overruled. . The Court also notes that many Perfect 10 models have appeared in a variety of non-Perfect 10 venues such as Playboy, Penthouse, and other websites. Ill Spillane Reply Decl., Exh. 1 at 4. . Internet Key did not raise the safe harbor under § 512(a) in its summary judgment motion. During oral argument," }, { "docid": "3727251", "title": "", "text": "operator of facilities therefor,” and includes entities “offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” 17 U.S.C. § 512(k). Section 512(k)(l)(B)’s definition has been interpreted broadly. See ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 623 (4th Cir.2001); Hendrickson v. Ebay, 165 F.Supp.2d 1082, 1087 (“eBay clearly meets the DMCA’s broad definition of online ‘service provider’ ”). Although there appears to be uniform agreement that the definition is broad, or at least broader than the definition of 512(k)(l)(A) concerning conduit-type services, the Court has found no discussion of this definition’s limits. Perfect 10 argues that section 512(c) was drafted with the limited purpose of protecting Internet infrastructure services in mind. Reply at 18. It contends that the definition for a provider of online services or network access does not include services that “participate in the selection or screening of that data or take an interest in the content of that data.” Id. at 18 n. 19. The inclusion of section 512(d) which creates a “safe harbor” for copyright infringement resulting from the use of information location tools by service providers, which include directories, indexes, references, pointers and hypertext links, strongly suggests that the definition of service provider is meant to include services that only provide location service tools, as well as services providing internet access and such tools. See H.R. Rep. 105-551(11), at 58 (identifying Yahoo! as an example); cf. also 47 U.S.C. § 231(b)(3)(reaeh of Child Online Protection Act defined by similar categories). The Court adopts that reading and will not use Perfect 10’s proposed interpretation to evaluate Cybernet’s ability to invoke the protection of section 512’s safe harbors. Nevertheless, Cybernet has made this a more complicated issue than it probably should be by its insistence that it does not host any infringing images and no image files pass through any of its computers. Opp’n at 21. This appears to be part of an overall' strategy to" }, { "docid": "4811535", "title": "", "text": "the DMCA provides MP3tunes with immunity and a procedure for dealing with claims from its users. 17 U.S.C. § 512(g). Accordingly, there is no genuine dispute that MP3tunes does not qualify for safe harbor protection for songs stored in users lockers that were sideloaded from the unauthorized websites identified in the EMGNA and EEW takedown notices. EMI also contends that MP3tunes should have taken down all EMI content because the notices provided a representative list. However, EMI’s argument misconstrues the DMCA and applicable case law. Even assuming the representative lists properly identified EMI’s copyrighted works, EMI had to provide sufficient information — namely, additional web addresses — for MP3tunes to locate other infringing material. See, e.g., Wolk v. Kodak Imaging Network, Inc., No. 10 Civ. 4135(RWS), 2011 WL 940056, at *11 (S.D.N.Y. Mar. 17, 2011). EMI’s notifications provided only enough information for MP3tunes to remove the noticed websites from Sideload.com and to find and remove copies of songs sideloaded from those websites. They did not identify the location of additional infringing material, let alone all of EMI’s copyrighted works. Absent adequate notice, MP3tunes would need to conduct a burdensome investigation in order to determine whether songs in its users’ accounts were unauthorized copies. As discussed, the DMCA does not place this burden on service providers. Thus, there is no genuine dispute that MP3tunes complies with the requirements of the DMCA with respect to songs sideloaded from websites not listed in the takedown notices. C. Subsections 512(e)(1)(A) and (d)(1) — Actual or “Red Flag” Knowledge of Infringement An internet service provider does not qualify for safe harbor protection under either subsections (c)(1)(A) or (d)(1) if it had actual knowledge that the material on its websites infringed another’s copyrights, or was aware of facts and circumstances, i.e., it saw “red flags,” that made such infringement apparent. Viacom, 718 F.Supp.2d at 520-21. These provisions are designed to deny safe harbor protection to internet service providers operating or linking to pirate sites whose illegal purpose is obvious to a reasonable person. Senate Committee on the Judiciary Report, S.Rep. No. 105-190 (1998) (“Senate Report”). Such" }, { "docid": "7836202", "title": "", "text": "worse than the latter. See id. at 243^14. Furthermore, if Congress had intended that the § 512(c)(1)(B) “right and ability to control” requirement be coextensive with vicarious liability law, the statute could have accomplished that result in a more direct manner. It is conceivable that Congress [would have] intended that [service providers] which receive a financial benefit directly attributable to the infringing activity would not, under any circumstances, be able to qualify for the subsection (c) safe harbor. But if that was indeed their intention, it would have been far simpler and much more straightforward to simply say as much. The Court does not accept that Congress would express its desire to do so by creating a confusing, self-contradictory catch-22 situation that pits 512(c)(1)(B) and 512(c)(1)(C) directly at odds with one another, particularly when there is a much simpler explanation: the DMCA requires more than the mere ability to delete and block access to infringing material after that material has been posted in order for the [service provider] to be said to have “the right and ability to control such activity.” Ellison v. Robertson, 189 F.Supp.2d 1051, 1061 (C.D.Cal.2002), aff'd in part and rev’d in part on different grounds, 357 F.3d 1072 (9th Cir.2004). Indeed, in the anti-circumvention provision in Title I of the DMCA, which was enacted at the same time as the § 512 safe harbors, Congress explicitly stated, “Nothing in this section shall enlarge or diminish vicarious or contributory liability for copyright infringement in connection with any technology, product, service, device, component, or part thereof.” 17 U.S.C. § 1201(c)(2). “If Congress had intended to exclude vicarious liability from the DMCA [Title II] safe harbors, it would have done so expressly as it did in Title I of the DMCA.” Lee, supra, 32 Colum. J.L. & Arts at 242. Our reading of § 512(c)(1)(B) is further informed and reinforced by our concern that the statute would be internally inconsistent in other respects were we to interpret the “right and ability to control” language as UMG urges. First, § 512(m) cuts against holding that Veoh’s general knowledge that infringing" }, { "docid": "3727265", "title": "", "text": "with section 512. ii. Deviation From Counter-Notification Requirements The conclusion above is reinforced by Cybernet’s counter-notification requirements. The DMCA’s counter-notification statement, with its good-faith requirement stated under penalty of perjury, separates good-faith infringers, and innocent users from those who knowingly infringe copyrights. See 17 U.S.C. § 512(g)(3). This requirement implicates the “reasonably implemented” policy of § 512(i) because there is an implication that a party who cannot sign the required statement-is a knowing infringer. Thus, the counter-notification procedures appear to serve the generally self-policing policy that section 512 reflects. Cybernet’s counter-notification procedures allow knowing infringers to sidestep this requirement. By stating under penalty of perjury that they removed the named infringing material, a knowing infringer will be reestablished on the Adult Check system. See Zadeh Deck, Ex. 1 at 23. On the one hand, this makes sense to the extent that Adult Check can only disable individual pages or sites because it cannot directly access the content. On the other hand, this also allows Cybernet to reinstate an infringer without the Congressionally-re-quired statement and provides cover for Cybernet to water down its termination policy by treating these minimalist take-down statements as neither an admission nor a denial of the copyright infringement allegations, regardless of how blatant the infringement might be. Although there is no evidence on this issue, the record before the Court provides substantial evidence of resistance on Cybernet’s part towards addressing copyright violations by its “unruly” webmasters. The DMCA is a carefully-balanced, although sometimes-unclear, piece of legislation. See Ellison, at 1066 n. 16. Cybernet’s DMCA “variant” appears to upset that balance. 2. Direct Financial Benefit and Right and Ability to Control Both relevant sections exclude from the safe harbor service providers that “receive a benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.” 17 U.S.C. § 512(c)(1)(B), (d)(2). Here, there is significant evidence that Cybernet receives a direct financial benefit. See supra. In Costar, 164 F.Supp.2d at 704-05, the district court found that a real estate website, which charged the same price to" }, { "docid": "15672046", "title": "", "text": "record before us, we cannot conclude that CCBill is a service provider under § 512(a). Accordingly, we remand to the district court for further consideration the issue of whether CCBill meets the requirements of § 512(a). D. Information Location Tools: § 512(d) After CCBill processes a consumer’s credit card and issues a password granting access to a client website, CCBill displays a hyperlink so that the user may access the client website. CCBill argues that it falls under the safe harbor of § 512(d) by displaying this hyperlink at the conclusion of the consumer transaction. We disagree. Section 512(d) reads: A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link. Even if the hyperlink provided by CCBill could be viewed as an “information location tool,” the majority of CCBill’s functions would remain outside of the safe harbor of § 512(d). Section 512(d) provides safe harbor only for “infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity.” (Emphasis added). Perfect 10 does not claim that CCBill infringed its copyrights by providing a hyperlink; rather, Perfect 10 alleges infringement through CCBill’s performance of other business services for these websites. Even if CCBill’s provision of a hyperlink is immune under § 512(n), CCBill does not receive blanket immunity for its other services. E. Information Residing on Systems or Networks at the Direction of Users: § 512(c) Section 512(c) “limits the liability of qualifying service providers for claims of direct, vicarious, and contributory infringement for storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” H.R. Rep., at 53. A service provider qualifies for safe harbor under § 512(c) if it meets the requirements of §" }, { "docid": "4811515", "title": "", "text": "argues that MP3tunes failed to reasonably implement a repeat infringer policy and is therefore ineligible for protection under subsection 512(i), which states: (i) Conditions for Eligibility.— (1) Accommodation of technology. — The limitations on liability established by this section shall apply to a service provider only if the service provider— (A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers .... 17 U.S.C. § 512(i). This requirement is a prerequisite for every DMCA safe harbor and is a fundamental safeguard for copyright owners. As described by Judge Posner, “[t]he common element of [the DMCA’s] safe harbors is that the service provider must do what it can reasonably be asked to do to prevent use of its service by ‘repeat infringers.’ ” In re Aimster Copyright Litig., 334 F.3d 643, 655 (7th Cir.2003); see also Columbia Pictures Indus., Inc. v. Fung, No. 06 Civ. 5578, 2009 WL 6355911, at *18 (C.D.Cal. Dec. 21, 2009). Other courts have described enforcement of this provision as essential to “maintain the ‘strong incentives’ for service providers to prevent their services from becoming safe havens or conduits for known repeat copyright infringers.” Perfect 10 v. Cybernet Ventures, 213 F.Supp.2d 1146, 1178 (C.D.Cal.2002). The key terms “reasonably implemented” and “repeat infringer” are not defined in the DMCA. Courts have held that implementation is reasonable if the service provider (1) has a system for responding to takedown notices, (2) does not interfere with the copyright owners’ ability to issue notices, and (3) under “appropriate circumstances” terminates users who repeatedly or blatantly infringe copyrights. See Perfect 10 v. CCBill, 488 F.3d 1102, 1109-1110 (9th Cir.2007). The purpose of subsection 512(i) is to deny protection to websites that tolerate users who flagrantly disrespect copyrights. See Corbis Corp. v. Amazon.com, 351 F.Supp.2d 1090, 1100-01 (W.D.Wash.2004). Thus, service providers that purposefully fail to keep adequate records of the identity and activities of their users and fail" }, { "docid": "12111540", "title": "", "text": "direct, vicarious and contributory infringement, leaving copyright owners with limited injunctive relief. Corbis Corp., 351 F.Supp.2d at 1098-99. Further, the safe harbor provisions are not exclusive of any other defense an accused infringer might have. CCBill LLC, 488 F.3d at 1109 (“ ‘[Njothing in the language of § 512 indicates that the limitation on liability described therein is exclusive.’ ”) (quoting CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 552 (4th Cir.2004)). “Far short of adopting enhanced or wholly new standards to evaluate claims of copyright infringement against online service providers, Congress provided that OCILLA’s ‘limitations of liability apply if the provider is found to be liable under existing principles of law. ’ ” Ellison, 357 F.3d at 1077 (quoting S. Rep. 105-190, 19 (1998)). With these principles in mind, the court now considers whether Veoh is entitled to safe harbor with respect to the alleged infringing activity here. B. DMCA Threshold Requirements To avail itself of any of the four safe harbors, Veoh must first satisfy certain threshold requirements. That is, it must be a “service provider” (see 17 U.S.C. § 512(k)) and it must adopt, reasonably implement and inform subscribers of a policy providing that it may, in appropriate circumstances, terminate the accounts of repeat infringers. See 17 U.S.C. § 512(i)(1)(A); Ellison, 357 F.3d at 1080. Further, the service provider is obliged to accommodate, and must not interfere with, “standard technical measures” used by copyright owners to identify or protect copyrighted works. See 17 U.S.C. § 512(i)(1)(B); Ellison, 357 F.3d at 1080. Io does not dispute that Veoh is a “service provider” as defined by DMCA Section 512(k)(1)(B). Nor does it dispute that Veoh (a) has adopted and informed account holders of its repeat infringer policy and (b) accommodates, and does not interfere with, “standard technical measures” used to protect copyrighted works. However, Io contends that there is a triable issue whether Veoh implements its repeat infringer policy in a reasonable manner. The DMCA does not say what “reasonably implemented” means. Nonetheless, the Ninth Circuit has held that “a service provider ‘implements’ a policy if it has" }, { "docid": "4451189", "title": "", "text": "reasoning of Io Group in order to declare which side’s view as to Io Group is correct. The Court does note that Io Group’s application of § 512(c) to automated functions that facilitate access to user-stored material is consistent with a number of cases finding that the safe harbor limits liability for activities involved in facilitating access to material uploaded at the direction of users. See, e.g., Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d 1090, 1094, 1110 (W.D.Wash.2004) (section 512(c) applies to “any copyright infringement” by vendors who created websites using tools and forms provided by defendant, where defendant did not actively participate in or supervise the uploading of images and did not preview the images); Hendrickson v. Amazon.com, Inc., 298 F.Supp.2d 914 (C.D.Cal.2003) (Hatter, J.) (section 512(c) applies to defendant for the sale of infringing goods on its website by third parties); Hendrickson v. eBay, Inc., 165 F.Supp.2d 1082, 1087-88 (C.D.Cal.2001) (Kelleher, J.) (section 512(c) shields defendant operator of website from liability for third parties’ sale and distribution of infringing material on its site, which provided an online forum, tools, and services, because § 512(c) applies to liability for material “stored and displayed on the service provider’s website” and “infringing ‘activity using the material’ ”) (quoting 17 U.S.C. § 512(c)(l)(A)(i)). In fact, UMG has cited no case holding that § 512(c) does not apply to software functions like those at issue here. UMG relies on Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir.2007) (“CCBill”) to argue that the Ninth Circuit has rejected the view that “if anything [Veoh] does falls within the limitation on liability of Section 512(c), then everything it does is categorically protected.” The Court does not understand Veoh to be taking this extreme position, and it is certainly not the view of this Court. For that reason alone the citation to CCBill is inapposite. In any event, CCBill does not conflict with the Court’s conclusion that alleged infringement arising from measures Veoh takes to facilitate access to materials stored at the direction of users is covered by § 512(c)’s safe harbor. First, CCBill" }, { "docid": "3727249", "title": "", "text": "II of the Digital Millennium Copyright Act (“DMCA”), Pub. L.. 105-304, Title II, § 202(a), 112 Stat. 2877 (1998)(codified at 17 U.S.C. § 512). The DMCA marked Congress’ entry into the online copyright fray. The DMCA created a series of four “safe harbors” to protect “providers of online services” from liability, primarily monetary liability, based on claims of copyright infringement attributable to the actions of users. See 17 U.S.C. §§ 512(a)-(d),(j). In order to qualify for these safe harbors, a provider of online services must: 1) adopt a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat in-fringers; 2) reasonably implement the policy; and 3) inform subscribers and account holders of the service provider’s system or network about the policy. See 17 U.S.C. § 512(i). The service provider and its policy must also not interfere with “standard technical measures” used by copyright owners to protect copyrighted works. See 17 U.S.C. § 512(i)(l)(B). These “safe harbors” do not affect the question of ultimate liability under the various doctrines of direct, vicarious, and contributory liability. See H.R. Rep. 105-551(11), at 50 (July 22, 1998); S. Rep. 105-190, at 19 (May 11, 1998). Rather they limit the relief available against service providers that fall within these safe harbors. See 17 U.S.C. §§ 512(a),(b)(1),(c)(1),(d), & (j). Of these “safe harbors,” Cybernet only invokes the harbors provided by section 512(c), governing information residing on the systems or networks at the direction of users, and section 512(d), governing information location tools (“web browsers”). Moreover, these “safe harbors” could not apply prior to August 8, 2001, the date Cybernet adopted the policy it claims is aimed at compliance with the DMCA. See Costar Group, Inc. v. Loopnet, Inc., 164 F.Supp.2d 688, 698 n. 4 (D.Md.2001). a. Is Cybernet A “Service Provider”? Cybernet devotes a single sentence to arguing that it is a “service provider” as the term is defined in section 512(k)(l)(B). Opp’n at 25. This section defines a service provider as a “provider of online services or network access, or the" }, { "docid": "12111583", "title": "", "text": "DMCA Section 512 contains two definitions of the term \"service provider.” See 17 U.S.C. § 512(k). Because Veoh’s motion is based only on its claimed eligibility for safe harbor under Section 512(c), the broader definition under Section 512(k)(1)(B) applies. Under that provision, \"the term 'service provider’ means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).” 17 U.S.C. § 512(k)(1)(B). . The court takes judicial notice of the Wikipedia definition of \"IP address” as to the fact that an IP address may be shared by multiple users. This is not a matter that is subject to reasonable dispute. . Additionally, Section 512(c)(2) requires service providers to designate an agent to receive notification of alleged copyright violations. As noted above, there is no dispute that Veoh has done so. . Plaintiff claims that the user profile page for one of the users who submitted its works to Veoh indicates that the user was a 17-year old — i.e., someone who was not legally permitted to view Io’s works, much less upload them to defendant’s system. (See Ruoff Decl. ISO Plaintiff’s MSJ tf 21). Plaintiff did not raise this argument in support of its opposition to Veoh's motion as to the DMCA safe harbor. At any rate, there is no evidence to suggest that Veoh was aware of, but chose to ignore, this circumstance. . Briefly stated, California Penal Code section 65 3w prohibits the knowing possession of a \"physical embodiment” of an audiovisual work that does not identify the manufacturer and author. Cal. Pen.Code § 653w(a). . OCILLA Section 512(j) provides in rele vant part: With respect to conduct other than that which qualifies for the limitation on remedies set forth in subsection (a), the court may grant injunctive relief with respect to a service provider only in one or more of the following forms: (i) An order retraining the service provider from providing access to infringing material or activity residing at a particular online site on the provider's system or network. (ii) An order restraining the service" }, { "docid": "15672047", "title": "", "text": "the majority of CCBill’s functions would remain outside of the safe harbor of § 512(d). Section 512(d) provides safe harbor only for “infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity.” (Emphasis added). Perfect 10 does not claim that CCBill infringed its copyrights by providing a hyperlink; rather, Perfect 10 alleges infringement through CCBill’s performance of other business services for these websites. Even if CCBill’s provision of a hyperlink is immune under § 512(n), CCBill does not receive blanket immunity for its other services. E. Information Residing on Systems or Networks at the Direction of Users: § 512(c) Section 512(c) “limits the liability of qualifying service providers for claims of direct, vicarious, and contributory infringement for storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” H.R. Rep., at 53. A service provider qualifies for safe harbor under § 512(c) if it meets the requirements of § 512(i) and: (A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing; (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material; (B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and (C)upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity. Section 512(c)(1). As discussed above, Perfect 10 did not provide CWIE with knowledge or awareness within the standard of § 512(c)(1)(A), and Perfect 10 did not provide notice that complies with the requirements of § 512(c)(3). The remaining question is whether Perfect 10 raises a genuine issue" }, { "docid": "3727250", "title": "", "text": "of ultimate liability under the various doctrines of direct, vicarious, and contributory liability. See H.R. Rep. 105-551(11), at 50 (July 22, 1998); S. Rep. 105-190, at 19 (May 11, 1998). Rather they limit the relief available against service providers that fall within these safe harbors. See 17 U.S.C. §§ 512(a),(b)(1),(c)(1),(d), & (j). Of these “safe harbors,” Cybernet only invokes the harbors provided by section 512(c), governing information residing on the systems or networks at the direction of users, and section 512(d), governing information location tools (“web browsers”). Moreover, these “safe harbors” could not apply prior to August 8, 2001, the date Cybernet adopted the policy it claims is aimed at compliance with the DMCA. See Costar Group, Inc. v. Loopnet, Inc., 164 F.Supp.2d 688, 698 n. 4 (D.Md.2001). a. Is Cybernet A “Service Provider”? Cybernet devotes a single sentence to arguing that it is a “service provider” as the term is defined in section 512(k)(l)(B). Opp’n at 25. This section defines a service provider as a “provider of online services or network access, or the operator of facilities therefor,” and includes entities “offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” 17 U.S.C. § 512(k). Section 512(k)(l)(B)’s definition has been interpreted broadly. See ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 623 (4th Cir.2001); Hendrickson v. Ebay, 165 F.Supp.2d 1082, 1087 (“eBay clearly meets the DMCA’s broad definition of online ‘service provider’ ”). Although there appears to be uniform agreement that the definition is broad, or at least broader than the definition of 512(k)(l)(A) concerning conduit-type services, the Court has found no discussion of this definition’s limits. Perfect 10 argues that section 512(c) was drafted with the limited purpose of protecting Internet infrastructure services in mind. Reply at 18. It contends that the definition for a provider of online services or network access does not include services that “participate in the selection or screening of that data or take" }, { "docid": "18123384", "title": "", "text": "clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” Id. at 936-37, 125 S.Ct. 2764. . There is no question in this case that Fung was authorized to and did speak on behalf of the corporate defendant, isoHunt Web Technologies, Inc. . 17 U.S.C. § 512(k) defines “service provider” more broadly for purposes of subsection (c) than it does for subsection (a). \"As used in [ ] section[s] other than subsection (a), the term 'service provider’ means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).” Id. § 512(k)(1)(B). . See supra pp. 1039-40. . We note that it is not clear from the language of § 512(c) or from the pertinent case law, whether exclusion from the § 512(c) safe harbor because of actual or \"red flag” knowledge of specific infringing activity applies only with regard to liability for that infringing activity, or more broadly. See Viacom Int'l, Inc., 676 F.3d at 31 (noting \"[t]he limited body of case law interpreting the knowledge provisions of the § 512(c) safe harbor”). However, as we shall explain, that issue does not arise with regard to the § 512(c)(1)(B), \"financial benefit/right to control” safe harbor. As we conclude that the § 512(c) safe harbor is not available to Fung on that ground as well, we need not question whether actual or red flag knowledge of specific infringing material or activity eliminates the § 512(c) safe harbor broadly, or only with respect to the known or objectively apparent infringing activity. . Our decisions interpreting the \"financial benefit” prong of § 512(c)(1)(B) derive almost entirely from our earlier decisions discussing \"direct financial benefits” in the context of vicarious liability for copyright infringement. Those cases also involved defendants who derived their revenue from consumers. In particular, our decision in Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 263-64 (9th Cir.1996), has been the starting point for our subsequent § 512(c)(1)(B) decisions. In Fo-novisa, we held that swap meet operators" } ]

[ { "docid": "22596202", "title": "", "text": "requires attorneys to take responsibility for the claims and defenses they represent; attorneys must make reasonable inquiry to assure that the claims, defenses and positions represented by them are well-grounded in both law and fact and are not intended to serve an improper purpose, such as harassment or delay. Under the rule, attorneys are also under a continuing obligation to ensure that the proceedings do not continue without a reasonable basis in law and fact. Robinson v. National Cash Register, 808 F.2d 1119, 1127 (5th Cir.1987); cf. Nemeroff v. Abelson, 704 F.2d 652, 658-59 (2d Cir.1983). The rule thus requires attorneys “to conduct [themselves] in a manner bespeaking reasonable professionalism and consistent with the orderly functioning of the judicial system.” Figueroa-Rodriguez v. Lopez-Rivera, 878 F.2d 1488, 1491 (1st Cir.1988) (quoting In re D.C. Sullivan Co., 843 F.2d 596, 598 (1st Cir.1988)), aff'd in part on rehearing en banc, 878 F.2d 1478 (1989). The appropriate standard for measuring whether a party and his or her attorney has responsibly initiated and/or litigated a cause of action in compliance with Rule 11, as amended in 1983, is an objective standard of reasonableness under the circumstances. Muthig v. Brant Point Nantucket, Inc., 838 F.2d 600, 604-05 (1st Cir.1988); Kale v. Combined Ins. Co. of Am., 861 F.2d 746, 756-57 (1st Cir.1988); Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 873 (5th Cir.1988); Fed R.Civ.P. 11, advisory notes. Before Rule 11 was revised in 1983, the standard under Rule 11 was a subjective one of good faith. Kale, 861 F.2d at 757. Under revised Rule 11, however, subjective good faith is no longer enough to protect an attorney from Rule 11 sanctions. Robinson, 808 F.2d at 1127. A violation of Rule 11, as revised, might be caused by inexperience, incompetence, willfulness, or deliberate choice. Cabell v. Petty, 810 F.2d 463, 466 (4th Cir.1987); Gaiardo v. Ethyl Corp., 835 F.2d 479, 482 (3rd Cir.1987). In imposing sanctions under Rule 11 and measuring an attorney’s conduct under this objective standard, courts should exercise caution. Courts should avoid using the wisdom of hindsight and instead evaluate an" } ]

[ { "docid": "16684642", "title": "", "text": "is reviewed under an abuse of discretion standard because “of the district court’s more intimate knowledge of the facts of these cases.” Century Products, Inc. v. Sutter, 837 F.2d 247, 253 (6th Cir. 1988). Accord Thomas v. Capital Security Services, Inc., 836 F.2d 866, 872 (5th Cir.1988) (en banc) (“After careful consideration of the policies behind Rule 11, we believe application of an abuse of discretion standard across-the-board to all issues in Rule 11 cases is the better approach.”); EBI, Inc. v. Gator Industries, Inc., 807 F.2d 1, 6 (1st Cir.1986) (“Our standard of review [in Rule 11 cases], of course, permits us to look only for abuse of discretion.”); Lieb v. Topstone Industries, Inc., 788 F.2d 151, 158 (3d Cir.1986) (“The consideration of counsel fees under ... Rule 11 ... is a matter for the informed judgment of the district court.”); Stevens v. Lawyers Mutual Liability Insurance Company of North Carolina, 789 F.2d 1056, 1060 (4th Cir.1986) (“a district court’s imposition of Rule 11 sanctions is ordinarily entitled to deference by this Court and may not be disturbed except for abuse of discretion”); O’Connell v. Champion International Corp., 812 F.2d 393, 395 (8th Cir. 1987) (“whether a violation [of Rule 11] has occurred is a matter for the [district] court to determine, and this determination involves matters of judgment and degree”); Cotner v. Hopkins, 795 F.2d 900, 903 (10th Cir.1986) (“The district court’s imposition of a sanction under Rule 11 is subject to review for abuse of discretion.”). In order to facilitate appellate review and ensure that we have something before us so that we may apply the appropriately deferential standard of review, district courts must make specific findings of facts and conclusions of law. See Brown v. Federation of State Medical Boards, 830 F.2d 1429, 1437 (7th Cir.1987). Here, Trikilis argues that the district court should have imposed sanctions on the plaintiffs and their attorneys because this action was filed and the litigation was conducted for several years with knowledge that he had a strong defense to their claims. As a result, Trikilis contends, he should be compensated" }, { "docid": "23052221", "title": "", "text": "the factual reasons for imposing Rule I 11 sanctions and the amount and type of I sanctions, while reserving a de novo analy-1 sis for reviewing the legal sufficiency of a ' pleading or motion and the determination to impose sanctions.” Thomas v. Capital Security Services, Inc., 836 F.2d 866, 872 (5th Cir.1988) (en banc); see Donaldson, 819 F.2d at 1556; Westmoreland, 770 F.2d at 1174-75; Eastway Construction Corp., 762 F.2d at 254 n. 7. The ratio decendi of these cases is that by using the phrase “shall impose ... an i appropriate sanction,” the new rule man- / dates the imposition of sanctions whenever J an objective violation of its tenets is found. See, e.g., Westmoreland, 770 F.2d at 1174-75. And since the Rule establishes an objective standard, an appellate court is in as good a position as the district court to evaluate the legal sufficiency of any pleadings or motions. See Eastway Construction Corp., 762 F.2d at 254 n. 7. An almost equal number of circuits courts, however, have looked at the same j language and concluded that an abuse of j discretion standard should be used in re-/ (viewing all aspects of a district court’s yftule 11 determination. See Thomas, 836 F.2d at 872-73; FDIC v. Tekfen Construction and Installation Co., Inc., 847 F.2d 440, 443 (7th Cir.1988); Century Products, Inc. v. Sutter, 837 F.2d 247, 253 (6th Cir.1988) (utilizing abuse of discretion standard while noting possibility of de novo review of abstract legal determinations); O’Connell v. Champion, 812 F.2d 393, 395 (8th Cir.1987); Cotner v. Hopkins, 795 F.2d 900, 903 (10th Cir.1986); Stevens v. Lawyers Mutual Liability Insurance Co. of North Carolina, 789 F.2d 1056, 1060 (4th Cir.1986). These cases opt for this result /because of its ease in application and because it vests the lion’s share of the ref sponsibility for imposing Rule 11 sanctions with the judicial actor closest to litigation— the district judge. We find this argument ^persuasive. The district judge is a firsthand observer of the proceedings below. His is the view from the trenches: he sees the shots fired by one" }, { "docid": "18571476", "title": "", "text": "existing law; and that it is not interposed for any improper purpose, such as to harass or to cause delay or increase the cost of litigation. If a document is signed in violation of this rule, the court on motion or on its own initiative, shall impose on the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney’s fee. This Rule is an adaptation of Federal Rule of Civil Procedure 11 with some modification. Thus, cases interpreting the standard required by Fed.R.Civ.P. 11 are persuasive when one considers the appropriate standard to be used in conjunction with Bankruptcy Rule 9011. First, it is a generally accepted proposition that there is a definite duty to conduct a reasonable inquiry as to the factual basis asserted by the party who signed the particular document. Second, it is also generally accepted that the standard to be applied is objective, rather than subjective, and the subjective good faith of an attorney is no excuse. In re D. C. Sullivan Co., Inc., 843 F.2d 596 (1st Cir.1988); see Thomas v. Capital Security Services, Inc., 812 F.2d 984 (5th Cir.1987), on reh., en banc, Thomas v. Capital Security Services, 822 F.2d 511 (5th Cir.1987), 836 F.2d 866 (5th Cir.1988) (en banc); INVST Financial Group, Inc. v. Chem-Nuclear Systems, Inc., 815 F.2d 391, 401 (6th Cir.1987), cert. den., 484 U.S. 927, 108 S.Ct. 291, 98 L.Ed.2d 251 (1987); Eastway Const. Corp. v. City of New York, 762 F.2d 243 (2d Cir.1985). As stated by the District Court in the case of Robert D. Sheret, d/b/a Twin Pines Sport Shop, 76 B.R. 935, 936 (W.D.N.Y.1987), “[sjubjective good faith does not provide a safe harbor against sanction.” The reasonableness of the investigation should be determined by the existing circumstances at the time the pleading or motion is submitted. In the present instance, there is hardly any doubt that even a cursory inquiry would have revealed" }, { "docid": "14573935", "title": "", "text": "mind. 3. What was the Complexity of the Legal and Factual Issues Raised in Goins’ Filings? Last, in addition to considering Goins’ pro se status and his experience and expertise, I must consider the complexity of the legal questions that Goins was faced with. See Advisory Committee Note to Rule 11 of the Federal Rules of Civil Procedure, 97 F.R.D. 198, 199 (1983); Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 875 (5th Cir.1988) (en banc); Brown v. Federation of State Medical Bds. of the U.S., 830 F.2d 1429, 1435 (7th Cir.1987) (commenting that one of the reasonable inquiry factors is “the complexity of the facts ... [when doing] a sufficient pre-filing investigation”). Here the legal issues and facts were simple. Indeed, the threshold issue was whether the November 30, 1988 Letter Agreement was enforceable. This was purely a factual determination that could have been resolved by contacting the parties to the Letter Agreement. Goins personally knew the parties of the Letter Agreement and how to contact them. A simple series of phone calls would have been enough. B. Was Goins’ Inquiry Reasonable? To avoid sanctions under Rule 9011, the signer, after a reasonable inquiry, must believe that each claim for relief was (1) well grounded in fact and (2) warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. Frantz v. U.S. Powerlifting Federation, 836 F.2d 1063, 1067 (7th Cir.1987). Here, however, none of the claims for relief are supported by a reasonable inquiry. 1. Was Goins ’ Proof of Claim Supported by a Reasonable Inquiry? a. Did Goins Perform a Reasonable Pre-Filing Factual Inquiry? Goins violated Rule 9011 by signing and filing his factually unsubstantiated proof of claim. First, Goins failed to perform a reasonable inquiry into the status of the Letter Agreement. Frankly, during the hearing on sanctions, Goins admitted the same. Indeed, Goins unequivocally testified that he did not performed a pre-filing factual or legal inquiry. Without doubt, Goins breached his duty to this court violating Rule 9011. See Chapman & Cole, 865 F.2d at 684 n." }, { "docid": "6283358", "title": "", "text": "laudable aim. We do not believe that the drafters’ language requires the result which the district court decreed. Although the wording of the amended Rule may possibly be ambiguous in this respect, the historical context and advisory committee notes unquestionably override any syntactical uncertainties. Not surprisingly, then, the amended Rule has rather consistently been read by federal appellate courts to reach groundless but “sincere” pleadings, as well as those which, while not devoid of all merit, were filed for some malign purpose. See, e.g., Herron v. Jupiter Transp. Co., 858 F.2d 332, 335 (6th Cir.1988); Brown v. Federation of State Medical Boards, 830 F.2d 1429, 1435-36 (7th Cir.1987); Hale v. Harney, 786 F.2d 688, 692 (5th Cir.1986); Westmoreland v. CBS, Inc., 770 F.2d 1168, 1174 (D.C.Cir.1985); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 253-54 (2d Cir.1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987); see also Schwarzer, supra, at 185. We, ourselves, have arrived at the same conclusion, albeit without extended discussion. See Unanue-Casal v. Unanue-Casal, 898 F.2d 839, 841 (1st Cir.1990). In sum, Rule 11, in its present incarnation, should be read as requiring sanctions “when it appears that a pleading has been interposed for any improper purpose, or where, after reasonable inquiry, a competent attorney could not form a reasonable belief that the pleading is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.” Eastway, 762 F.2d at 254 (emphasis in original). In other words, the “new” Rule contains not one, but two, grounds for sanctions: the “reasonable inquiry” clause, see, e.g., Fred A. Smith Lumber Co. v. Edidin, 845 F.2d 750, 752 (7th Cir.1988); Zaldivar v. City of Los Angeles, 780 F.2d 823, 830-31 (9th Cir.1986), and the “improper purpose” clause, see, e.g., Brown, 830 F.2d at 1435; Zaldivar, 780 F.2d at 831-32. While bad faith remains sanctionable, it is now not a sine qua non to a Rule 11 impost. Put bluntly, a pure heart no longer excuses an empty head. In this" }, { "docid": "22221827", "title": "", "text": "purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Fed.R.Civ.P. 11 (1986). . All other circuits which have faced the question agree with Cotner and Chevron that the choice of an appropriate sanction is entrusted to the district court’s sound discretion. See, e.g., Thomas v. Capital Security Services, Inc., 836 F.2d 866, 878 (5th Cir.1988) (en banc); Brown v. Federation of State Medical Boards of the United States, 830 F.2d 1429, 1434 (7th Cir.1987); Donaldson v. Clark, 819 F.2d 1551, 1557 (11th Cir.1987) (en banc); INVST Financial Group, Inc. v. Chem-Nuclear Systems, Inc., 815 F.2d 391, 401 (6th Cir.), cert. denied, — U.S. -, 108 S.Ct. 291, 98 L.Ed.2d 251 (1987); Lieb v. Topstone Industries, Inc., 788 F.2d 151, 157 (3d Cir.1986); Zaldivar v. City of Los Angeles, 780 F.2d 823, 828 (9th Cir.1986); Westmoreland v. CBS, Inc., 770 F.2d 1168, 1175 (D.C.Cir.1985); Eastway Construction Corp. v. City of New York, 762 F.2d 243, 254 n. 7 (2d Cir.1985), cert. denied, — U.S. -, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987); Kurkowski v. Volcker, 819 F.2d 201, 203 n. 8 (8th Cir.1987). . Some of the circuits have adopted a unitary abuse-of-discretion standard for all aspects of a district court’s Rule 11 analysis. See Thomas v. Capital Security Services, Inc., 836 F.2d 866, 872-73 (5th Cir.1988) (en banc); Century Products, Inc. v. Sutter, 837 F.2d 247, 253 (6th Cir.1988); EBI Inc. v. Gator Industries, Inc., 807 F.2d 1, 6 (1st Cir.1986); Stevens v. Lawyers Mutual Liability Insurance Co., 789 F.2d 1056, 1060 (4th Cir.1986). Cf. Snow Machines, Inc. v. Hedco, Inc., 838 F.2d 718, 724-25 (3d Cir.1988). Among those circuits which apply the de novo standard, there are some differences in approach. The first variation of the de novo theme is known popularly as the \"three-tier” standard since it breaks down Rule 11 analysis into three levels: (a) reviewing for clear error the district court's factual findings that given behavior occurred; (b) reviewing de novo the legal conclusion whether that behavior constitutes a Rule 11 violation; and (c) if a violation" }, { "docid": "1194350", "title": "", "text": "to the point of certainty. Nemmers v. United States, 795 F.2d 628, 632 (7th Cir.1986). “The amount of investigation required by Rule 11 depends on both the time available to investigate and on the probability that more investigation will turn up important evidence; the rule does not require steps that are not cost-justified.” Szabo Food Service, 823 F.2d at 1083. In Brown v. Federation of State Medical Boards of the United States, 830 F.2d 1429, 1433 (7th Cir.1987), we noted several factors bearing on whether a signer’s inquiry into the facts was reasonable: whether the signer of the documents had sufficient time for investigation; the extent to which the attorney had to rely on his or her client for the factual foundation underlying the pleading, motion or other paper; whether the case was accepted from another attorney; the complexity of the facts and the attorney’s ability to do a sufficient pre-filing investigation; and whether discovery would have been beneficial to the development of the underlying facts. 830 F.2d at 1435. Rule 11 provides two grounds for sanctions, namely, the “frivolousness clause” and the “improper purpose” clause. Id. at 1435. The frivolousness clause requires that the party or the attorney conduct a reasonable inquiry into the facts and the law relevant to the case. Id. The improper purpose clause ensures “that a motion, pleading, or other document may not be interposed for purposes of delay, harassment, or increasing the costs of litigation.” Id. at 1436. The standard for imposing sanctions under either prong of Rule 11 is an “objective determination of whether the sanctioned party’s conduct was reasonable under the circumstances.” Id. at 1435. We must determine only whether the arguments actually advanced by counsel were reasonable, and not whether reasonable arguments could have been advanced in support of counsel’s position. In re Ronco, Inc., 838 F.2d 212 (7th Cir.1988). Also, as we pointed out in Brown, the most important purpose of Rule 11 sanctions is to deter frivolous litigation and the abusive practices of attorneys. Id. at 1438; see also Flip Side Productions, 843 F.2d at 1036. This same policy" }, { "docid": "9529608", "title": "", "text": "that these were “factors” to be weighed against other “incidents of the [employee-employer] relationship” in order to determine employee status, citing NLRB v. United Ins. Co. of Am., 390 U.S. 254, 258, 88 S.Ct. 988, 999, 19 L.Ed.2d 1083 (1968). We disagree. Gavin, as discussed above, relied on Martin’s statements for the facts he claims support Martin’s claim of independent contractor status. Yet these documents, which clearly belie this claim, existed and were available to Gavin at that time. Cf. Brown v. Federation of State Medical Bds., 830 F.2d 1429, 1436 (7th Cir.1987) (where record was developed by the time third lawyer was substituted in the case, it was not necessary for him to rely on his client for the factual foundation). Under Rule 11, attorneys are required to make a reasonable inquiry to determine whether pleadings or other documents they sign are well-grounded in fact and warranted by existing law. If the district court concludes that the motion, pleading, or other document was not well-grounded in fact or warranted by the existing law, or was meant to harass, then the court must impose a sanction. Fed.R.Civ.P. 11; Brown, 830 F.2d at 1433. There are two grounds for sanctions in Rule 11: the “frivolousness clause” and the “improper purpose clause.” As set forth in Brown, the frivolousness clause of Rule 11 has two subparts: whether the party or attorney made a reasonable inquiry into the facts, and whether the party or attorney made a reasonable inquiry into the law. Brown, 830 F.2d at 1435-36. Similar to the district judge in Brown, the trial court’s ruling here seems to be based on Gavin’s failure to make reasonable inquiries into either the facts or the law, which violated the two subparts of the frivolousness clause. See Thomas v. Capital Security Services, Inc., 812 F.2d 984, 988 (5th Cir.1987), aff'd in part, vacated and remanded in part, 836 F.2d 866 (5th Cir.1988) (en banc). In Brown, we analyzed the inquiries a district court must make in determining whether an attorney’s conduct has violated the frivolousness clause thus: To determine whether the attorney made" }, { "docid": "22184474", "title": "", "text": "what the sanctions should be at a minimum, and that Pelletier and Schlanger should be liable for them jointly and severally. . Rule 11 imposes a standard of reasonableness under the circumstances. See Fed.R.Civ.P. 11 advisory committee note. A court should apply this standard with two goals in mind: to deter the filing of frivolous claims and defenses, see Thomas v. Evans, 880 F.2d 1235, 1239 (11th Cir.1989); Schwarzer, Rule 11 Revisited, 101 Harv.L.Rev. 1013, 1020 (1988); Note, A Uniform Approach to Rule 11 Sanctions, 97 Yale L.J. 901, 907 (1988), but not to \"chill an attorney’s enthusiasm or creativity in pursuing factual or legal theories,” Fed.R.Civ.P. 11 advisory committee note. In assessing Rule 11 sanctions, a court first determines whether the party’s claims are objectively frivolous—in view of the facts or law— and then, if they are, whether the person who signed the pleadings should have been aware that they were frivolous, i.e., whether he would have been aware had he made a reasonable inquiry. If the attorney/party did not make a \"reasonable inquiry,” then the court must im- pose sanctions—despite the attorney/party’s good faith belief that the claims were sound. See Donaldson, 819 F.2d at 1556. With regard to the reasonableness of the party's inquiry into the pleading’s factual basis, a court may consider whether the signing attorney accepted the case by referral from another member of the bar; the time available for investigation; the extent of the attorney's reliance on his client's version of the facts; the complexity of the facts; and the extent to which factual development requires discovery. See Fed.R.Civ.P. 11 advisory committee note; Thomas v. Capital Sec. Servs., 836 F.2d 866, 875 (5th Cir.1988) (en banc); ABA, Section of Litig., Standards and Guidelines for Practice Under Rule 11 of the Federal Rules of Civil Procedure, 121 F.R.D. 101, 114 (1988) [hereinafter ABA Standards]. With regard to the reasonableness of a pleading’s legal basis, a court may consider the time available to prepare the pleading; the complexity of the legal issues; the plausibility of the argument; and whether the party is proceeding pro se. See" }, { "docid": "22221828", "title": "", "text": "269, 98 L.Ed.2d 226 (1987); Kurkowski v. Volcker, 819 F.2d 201, 203 n. 8 (8th Cir.1987). . Some of the circuits have adopted a unitary abuse-of-discretion standard for all aspects of a district court’s Rule 11 analysis. See Thomas v. Capital Security Services, Inc., 836 F.2d 866, 872-73 (5th Cir.1988) (en banc); Century Products, Inc. v. Sutter, 837 F.2d 247, 253 (6th Cir.1988); EBI Inc. v. Gator Industries, Inc., 807 F.2d 1, 6 (1st Cir.1986); Stevens v. Lawyers Mutual Liability Insurance Co., 789 F.2d 1056, 1060 (4th Cir.1986). Cf. Snow Machines, Inc. v. Hedco, Inc., 838 F.2d 718, 724-25 (3d Cir.1988). Among those circuits which apply the de novo standard, there are some differences in approach. The first variation of the de novo theme is known popularly as the \"three-tier” standard since it breaks down Rule 11 analysis into three levels: (a) reviewing for clear error the district court's factual findings that given behavior occurred; (b) reviewing de novo the legal conclusion whether that behavior constitutes a Rule 11 violation; and (c) if a violation is found, reviewing for abuse of discretion the district court’s choice of an appropriate sanction. See Brown, 830 F.2d at 1434 (7th Cir.); Kurkowski, 819 F.2d at 203 n. 8 (8th Cir.); Zal-divar, 780 F.2d at 828 (9th Cir.). The Second Circuit also applies de novo review but has not defined its standard in such detail; it exercises plenary review over an allegation that \"in fact, a pleading was groundless ...\" but it has not established a standard of review for pleadings which are groundless as a matter of law or are interposed for an improper purpose. See Eastway, 762 F.2d at 254 n. 7. Some courts take either a de novo or an abuse-of-discretion approach, depending on the type of Rule 11 violation alleged. These circuits apply de novo review to allegations that a pleading was not well grounded in existing law or supported by a good faith argument for its extension, modification, or reversal; but they review for abuse of discretion if the pleading is alleged to be either not well grounded in" }, { "docid": "1274371", "title": "", "text": "is signed in violation of this rule, the bankruptcy court is authorized to impose sanctions on the signing attorney. Id. The lower court’s ruling as to attorney fees is generally reviewed for an abuse of discretion. Adamson v. Bowen, 855 F.2d 668, 673 (10th Cir.1988) (addressing the standard under the parallel Fed.R.Civ.P. 11). However, the factual findings supporting the court’s award are reviewed under the clearly erroneous standard. Id. There is a split between the circuits as to whether Rule 9011, or its analog, Rule 11, imposes a continuous duty on counsel to reevaluate whether a signed and filed pleading complies with the rule. See generally, Sauls v. Penn Va. Resources Corp., 121 F.R.D. 657 (W.D.Va.1988). Some courts have held that “an attorney and the litigant have a continuing duty to review and reevaluate their pleadings, motions and other papers and upon discovery that such papers were without merit, to immediately dismiss the action at the risk of inviting the imposition of Rule 11 sanctions.” Herron v. Jupiter Transp. Co., 858 F.2d 332, 336 (6th Cir.1988); see also Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 681 (6th Cir.1988); City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 49-50 (2d Cir.1988); Flip Side Prods., Inc. v. Jam Prods., Ltd., 843 F.2d 1024, 1037 (7th Cir.1988); In re Cedar Falls Hotel Properties Ltd. Partnership, 102 B.R. 1009, 1014 (Bankr.N.D. Iowa 1989). The opposite view rejects the above position as beyond the intended scope of Rule 11: [A] construction of Rule 11 which evaluates an attorney’s conduct at the time a “pleading, motion or other paper” is signed is consistent with the intent of the rulemakers and the plain meaning of the language contained in the rule. Like a snapshot, Rule 11 review focuses upon the instant when the picture is taken— when the signature is placed on the document. Rule 11 was promulgated for a particular purpose — to check abuses in the signing of pleadings. Thomas v. Capital Sec. Serv., Inc., 836 F.2d 866, 875 (5th Cir.1988) (departing from earlier Circuit authority applying a continuing obligation under" }, { "docid": "14573934", "title": "", "text": "(treating citation to case law as evidence of an ability to perform legal research and understanding of the law), cert. denied, 481 U.S. 1007, 107 S.Ct. 1633, 95 L.Ed.2d 206 (1987). Beyond his filings, Goins has been served with opposing pleadings, motions and complaints. These papers contained citation and persuasive legal argument. Simply, Goins not only possessed the skill to perform minimal legal research, he also had examples of what a filing should consist of. Goins’ knowledge and experience reaches beyond this court. Indeed, Goins has started a § 302A action in the Minnesota State Court has appeared in the United States District Court on several appeals. Goins has also brought actions before the Federal Communications Commission and the United States Court of Appeals in the District of Columbia Circuit. Goins is clearly a skilled person. Goins has repetitively displayed exceptional tenacity, knowledge, awareness, resourcefulness and intellect. Goins has cleverly used these skills to navigate through this case. I cannot ignore Goins’ ability. I must judge Goins papers with his legal experience and expertise in mind. 3. What was the Complexity of the Legal and Factual Issues Raised in Goins’ Filings? Last, in addition to considering Goins’ pro se status and his experience and expertise, I must consider the complexity of the legal questions that Goins was faced with. See Advisory Committee Note to Rule 11 of the Federal Rules of Civil Procedure, 97 F.R.D. 198, 199 (1983); Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 875 (5th Cir.1988) (en banc); Brown v. Federation of State Medical Bds. of the U.S., 830 F.2d 1429, 1435 (7th Cir.1987) (commenting that one of the reasonable inquiry factors is “the complexity of the facts ... [when doing] a sufficient pre-filing investigation”). Here the legal issues and facts were simple. Indeed, the threshold issue was whether the November 30, 1988 Letter Agreement was enforceable. This was purely a factual determination that could have been resolved by contacting the parties to the Letter Agreement. Goins personally knew the parties of the Letter Agreement and how to contact them. A simple series of phone calls" }, { "docid": "22184475", "title": "", "text": "then the court must im- pose sanctions—despite the attorney/party’s good faith belief that the claims were sound. See Donaldson, 819 F.2d at 1556. With regard to the reasonableness of the party's inquiry into the pleading’s factual basis, a court may consider whether the signing attorney accepted the case by referral from another member of the bar; the time available for investigation; the extent of the attorney's reliance on his client's version of the facts; the complexity of the facts; and the extent to which factual development requires discovery. See Fed.R.Civ.P. 11 advisory committee note; Thomas v. Capital Sec. Servs., 836 F.2d 866, 875 (5th Cir.1988) (en banc); ABA, Section of Litig., Standards and Guidelines for Practice Under Rule 11 of the Federal Rules of Civil Procedure, 121 F.R.D. 101, 114 (1988) [hereinafter ABA Standards]. With regard to the reasonableness of a pleading’s legal basis, a court may consider the time available to prepare the pleading; the complexity of the legal issues; the plausibility of the argument; and whether the party is proceeding pro se. See Fed.R.Civ.P. 11 advisory committee note; Capital Security, 836 F.2d at 875-76; ABA Standards, 121 F.R.D. at 116-17. Since, however, we find that Pelletier and Schlanger actually knew from the beginning that Pelletier’s claims were frivolous but proceeded to prosecute them anyway, it is unnecessary for us to examine what a reasonable inquiry by Schlanger would have revealed. . Pelletier had a third suit against Culpepper, the federal securities fraud suit he had Schlan-ger bring (in the name of the Hurst Group) as a strategic ploy on January 16, 1985, the same day Bassett filed Pelletier’s (and Langston's) shareholders' derivative action. See supra pp. 1479-1480. The district court dismissed this suit without prejudice on September 26, 1985; thus, Pelletier could have refiled it. Culpepper evidently overlooked this fact when, in exchange for his signature on the $25,000 note to Pelletier, he did not require Pelletier to give him a release of the Hurst Group’s securities fraud claims in addition to the dismissal of the two suits mentioned in the text. . As noted, the only possible" }, { "docid": "6283357", "title": "", "text": "been deleted”); Ballard’s Serv. Center, Inc. v. Transue, 865 F.2d 447, 449 (1st Cir.1989) (after 1983 amendments, “purely subjective bad faith” no longer required). In a nutshell, the revisers sought to expand Rule 11 to reach groundless filings which failed the test “of objective reasonableness under the circumstances existing at the time [of filing],” Kale, 861 F.2d at 758, irrespective of the filing party’s state of mind. Discussion The court below construed amended Rule 11 to preclude sanctions unless an attorney or party not only failed to make a “reasonable inquiry,” but also did so without a “sinceref ] belie[f]” that the challenged pleading might be availing. We strongly disagree. Such an interpretation would make the “new” Rule 11 less useful than its predecessor in combating abusive practices and would thereby undermine the goal of the 1983 amendments. Providing an automatic escape hatch from the duty of reasonable inquiry for pleaders who, while oblivious to the facts or the law, nevertheless blunder ahead in subjective good faith, would eviscerate the amended Rule and skew its laudable aim. We do not believe that the drafters’ language requires the result which the district court decreed. Although the wording of the amended Rule may possibly be ambiguous in this respect, the historical context and advisory committee notes unquestionably override any syntactical uncertainties. Not surprisingly, then, the amended Rule has rather consistently been read by federal appellate courts to reach groundless but “sincere” pleadings, as well as those which, while not devoid of all merit, were filed for some malign purpose. See, e.g., Herron v. Jupiter Transp. Co., 858 F.2d 332, 335 (6th Cir.1988); Brown v. Federation of State Medical Boards, 830 F.2d 1429, 1435-36 (7th Cir.1987); Hale v. Harney, 786 F.2d 688, 692 (5th Cir.1986); Westmoreland v. CBS, Inc., 770 F.2d 1168, 1174 (D.C.Cir.1985); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 253-54 (2d Cir.1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987); see also Schwarzer, supra, at 185. We, ourselves, have arrived at the same conclusion, albeit without extended discussion. See Unanue-Casal v. Unanue-Casal, 898" }, { "docid": "13225638", "title": "", "text": "F.2d 1219, 1221-1222 (8th Cir.1987) (Rule 9011 can be applied by bankruptcy court even though it is not an Article III court). The primary purpose of both rules is to deter unnecessary filings for the benefit of the judicial system. Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1077-1080 (7th Cir.1987). It is well established that “[t]he standard for imposing sanctions under Rule 11 is an objective determination of whether a sanctioned party’s conduct was reasonable under the circumstances.” Brown v. Federation of State Medical Boards, 830 F.2d 1429, 1435 (7th Cir.1987). See Dreis & Krump Mfg. Co. v. International Ass’n. of Machinists & Aerospace Workers, 802 F.2d 247, 255 (7th Cir.1986). Subjective bad faith is no longer the inquiry. See, e.g., Brown, 830 F.2d at 1435. Once the Court finds a Rule 11 violation, it is required to impose a sanction for the protection of the judicial process and to relieve the financial burden that baseless litigation imposes on the other side. Szabo, 823 F.2d at 1082; see also PainWebber Inc. v. Can Am Financial Group, Ltd., 121 F.R.D. 324, 329 (N.D.Ill.1988), aff'd, 885 F.2d 873 (7th Cir.1989); Mars Steel Corp. v. Continental Illinois Nat. Bank & Trust Co., 120 F.R.D. 53, 55 (N.D.Ill.1988), aff'd, 880 F.2d 928 (7th Cir.1989). Rule 11 contains two grounds for sanctions. The first ground is the “frivolousness clause.” Brown, 830 F.2d at 1435. The relevant inquiry for this ground has two prongs: (1) whether the attorney or party made a reasonable investigation into the facts; and (2) whether the attorney or party made a reasonable investigation of the law. In making a determination of whether the attorney or party made a reasonable inquiry into the facts of the case, the following five factors must be considered: (1) whether the signer of the documents had sufficient time for investigation; (2) the extent to which the attorney had to rely on his or her client for the factual foundation underlying the pleading, motion, or other paper; (3) whether the case was accepted from another attorney; (4) the complexity of the facts and the" }, { "docid": "1219173", "title": "", "text": "leaving unopposed the summary judgment motion, thus rendering 41(a)(2) inapplicable. It remains only to consider the defendant’s motion for sanctions. I Campbell-Mithun’s motion for sanctions focuses on Schmitz’s complaint. It argues that Schmitz filed her complaint for an improper purpose (to seek revenge rather than redress), and without making a reasonable inquiry into the factual basis for her claim. Since Schmitz’s complaint was filed in state court, Rule 11 does not apply. Hurd v. Ralphs Grocery Co., 824 F.2d 806, 808 (9th Cir.1987); Stiefoater Real Estate, Inc. v. Hinsdale, 812 F.2d 805, 809 (2d Cir.1987); Kirby v. Allegheny Beverage Corp., 811 F.2d 253, 256-57 (4th Cir.1987); Peffley v. Durakool, Inc., 669 F.Supp. 1453, 1460-61 (N.D.Ind.1987); Cuneo, Cabrini Medical Center v. Holiday Inn, 111 F.R.D. 444, 447 (N.D.Ill.1986); see also Vairo, Rule 11: A Critical Analysis, 118 F.R.D. 189, 212 (1988). A complaint filed in state court and subsequently removed to Federal District Court would be subject to Rule 11, however, if the Rule is construed to impose a continuing duty on parties and counsel to revise pleadings to conform to newly discovered information. See, e.g., Herron v. Jupiter Transp. Co., 858 F.2d 332, 335-36 (6th Cir.1988); Note, Rule 11 of the Federal Rules of Civil Procedure and the Duty to Withdraw a Baseless Pleading, 56 Fordham L.Rev. 697 (1988) (advocating imposition of continuing duty under Rule 11); Parness, Groundless Pleadings and Certifying Attorneys in the Federal Courts, 1985 Utah L.Rev. 325 (same). But Pantry Queen Foods v. Lifschultz Fast Freight, 809 F.2d 451, 454 (7th Cir.1987), held that “Rule 11 does not require the updating of papers that were not subject to sanctions when filed.” And, with the exception of the Sixth Circuit in Herron , every other Court of Appeals has reached this conclusion. See Oliveri v. Thompson, 803 F.2d 1265 (2d Cir.1986), cert. denied, 480 U.S. 918, 107 S.Ct. 1373, 94 L.Ed.2d 689 (1987); Gaiardo v. Ethyl Corp., 835 F.2d 479 (3d Cir.1987); Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866 (5th Cir.1988) (en banc); Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531 (9th Cir.1986)." }, { "docid": "5476074", "title": "", "text": "to Rule 11 liability, an attorney must sign the pleadings or papers filed in the district court which are the focus of inquiry. Rathbun v. Warren City Schools (In Re Ruben), 825 F.2d 977, 984 (6th Cir.1987). The notes of the Advisory Committee on Rules explain that “[t]he new language stresses the need for some prefiling inquiry into both the facts and the law to satisfy the affirmative duty imposed by the rule.” Fed.R.Civ.P. 11 Advisory Committee’s notes. They further state that “[t]he standard is one of reasonableness under the circumstances,” and that “[t]his standard is more stringent than the original good faith formula and thus it is expected that a greater range of circumstances will trigger its violation....” Ibid. If the court finds that this principle has been violated, Rule 11 provides that the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee. Fed.R.Civ.P. 11 (emphasis supplied). The mandatory word “shall” is intended to remove the exercise of discretion by the court in imposing Rule 11 sanctions once it has found a violation. The notes of the Advisory Committee on Rules also state that “[t]he new language is intended to reduce the reluctance of courts to impose sanctions ... by emphasizing the responsibility of the attorney and reinforcing those obligations by the imposition of sanc-tions_” Fed.R.Civ.P. 11 Advisory Committee’s notes. To prevail in an appeal from the imposition of Rule 11 sanctions, an appellant “must show that the district court abused its discretion in finding that his conduct was not reasonable under the circumstances.” Century Products, Inc. v. Sutter, 837 F.2d 247, 250 (6th Cir.1988) (citations omitted). Relevant factors for determining whether the reasonable inquiry test has been met in a given case include: “the time available to the signor for investigation; whether the signor had to rely" }, { "docid": "5563607", "title": "", "text": "of an attorney or party [on a pleading, motion, or other paper] constitutes a certificate ... that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. ... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee. . In Kale v. Combined Insurance Co. of America, 861 F.2d 746 (1st Cir.1988), this circuit held that an abuse of discretion standard would be used in reviewing all aspects of a district court’s Rule 11 determination — including both (1) the legal conclusion of the district court that the facts constitute a violation of the Rule and (2) the appropriateness of the sanction imposed. Id. at 757-58. We thus joined those circuits that have adopted the abuse of discretion standard of review, see, e.g. Thomas v. Capital Security Services, Inc., 836 F.2d 866, 872-73 (5th Cir.1988) (en banc); F.D.I.C. v. Tekfen Construction and Installation Co., Inc., 847 F.2d 440, 443 (7th Cir. 1988); Century Products, Inc. v. Sutter, 837 F.2d 247, 253 (6th Cir.1988); O'Connell v. Champion, 812 F.2d 393, 395 (8th Cir.1987); Cotner v. Hopkins, 795 F.2d 900, 903 (10th Cir.1986); Stevens v. Lawyers Mutual Liability Insurance Co. of North Carolina, 789 F.2d 1056, 1060 (4th Cir.1986), as opposed to those that have adopted a de novo standard of review, see, e.g., Eastway Construction Corp. v. City of New York, 762 F.2d 243, 254 n. 7 (2d Cir.1985);" }, { "docid": "5476075", "title": "", "text": "the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee. Fed.R.Civ.P. 11 (emphasis supplied). The mandatory word “shall” is intended to remove the exercise of discretion by the court in imposing Rule 11 sanctions once it has found a violation. The notes of the Advisory Committee on Rules also state that “[t]he new language is intended to reduce the reluctance of courts to impose sanctions ... by emphasizing the responsibility of the attorney and reinforcing those obligations by the imposition of sanc-tions_” Fed.R.Civ.P. 11 Advisory Committee’s notes. To prevail in an appeal from the imposition of Rule 11 sanctions, an appellant “must show that the district court abused its discretion in finding that his conduct was not reasonable under the circumstances.” Century Products, Inc. v. Sutter, 837 F.2d 247, 250 (6th Cir.1988) (citations omitted). Relevant factors for determining whether the reasonable inquiry test has been met in a given case include: “the time available to the signor for investigation; whether the signor had to rely on a client for information as to the facts underlying the pleading, motion, or other paper; whether the pleading, motion, or other paper was based on a plausible view of the law; or whether the signor depended on forwarding counsel or another member of the bar.” Id. at 250-51 (citation omitted). We have recently stated that the “[t]he court is expected to avoid using the wisdom of hindsight and should test the signor’s conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted.” INVST Financial Group v. Chem-Nuclear Systems (In Re Garratt), 815 F.2d 391, 401 (6th Cir.1987) (quoting Fed.R.Civ.P. 11 Advisory Committee’s note to the 1983 Amendment). An objective standard of reasonableness under the circumstances must be the measure of counsel’s behavior. Century Products, 837 F.2d at 251, 253. The focus of any Rule 11 inquiry for the district court must be pleadings, motions, or other papers filed in the district court, as opposed to those filed in state courts or in federal Courts of" }, { "docid": "21470618", "title": "", "text": "of New York, 821 F.2d 121, 124 (2d Cir.) (Pratt, J., dissenting) (describing the \"new ‘Era of Sanctions'\"), cert. denied, — U.S. -, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987). See also Schwarzer, Rule 11 Revisited, 101 Harv.L.Rev. 1013 (1988). . Thomas v. Capital Security Services, Inc., 836 F.2d 866, 874 (5th Cir.1988) (en banc). . Id. at 874. . Id. at 873. . Thomas v. Capital Security Services, Inc., 812 F.2d 984 (5th Cir.1987), vacated in relevant part, 836 F.2d 866 (5th Cir.1988) (en banc). . 836 F.2d at 874. . Id. at 880-81. This policy follows from the advisory committee’s instruction that parties filing for sanctions should notify the court and opposing party “promptly” after discovering a basis for sanctions. Fed.R.Civ.P. 11 advisory committee’s note. It enhances Rule ll’s educational power by letting judges pinpoint those motions and pleadings that are abusive. It may also increase the rule’s deterrent effect by making the imposition of costs and fees for each infraction more certain. Further, limiting awards under Rule 11 to specific motions or pleadings reduces the likelihood that parties seeking sanctions will run up unreasonable costs to punish the sanctioned party. . See Benoit, 765 F.2d 141 (5th Cir.1985) (per curiam) (unpublished). . Thomas, 836 F.2d at 875. . An attorney may escape sanctions under rule 11 if he had to rely on a client for information about the facts underlying the pleadings. See Fed.R.Civ.P. Rule 11 advisory committee's note; 2A J. Moore & J. Lucas, Moore's Federal Practice ¶ 11.02 [3] n. 26 (2d ed. 1987). . Kamen v. American Telephone & Telegraph, 791 F.2d 1006, 1012 (2d Cir.1986). . See Kamen, 791 F.2d at 1013 (describing difficulties of defining “federal financial assistance” within meaning of Rehabilitation Act). . This court’s reversal of the magistrate’s dismissal of the Rehabilitation Act claim against Bernard, 788 F.2d 1563 does not establish that St. Amant’s claims had merit at that time. The court held that St. Amant’s pleadings accomplished their purpose because they notified the defendants of what he intended to prove. The opinion does not discuss the basis for" } ]

[ { "docid": "22799663", "title": "", "text": "History, supra, at 777; see also id. at 31,966 (Department of Justice view of Senate compromise discussing strict liability), reprinted in 1 CERCLA Legislative History, supra, at 780-81. Strict liability under CERCLA, however, is not absolute; there are defenses for causation solely by an act of God, an act of war, or acts or omissions of a third party other than an employee or agent of the defendant or one whose act or omission occurs in connection with a contractual relationship with the defendant. 42 U.S.C. § 9607(b). Discussion A. Liability for Response Costs Under CERCLA We hold that the district court properly awarded the State response costs under section 9607(a)(4)(A). The State’s costs in assessing the conditions of the site and supervising the removal of the drums of hazardous waste squarely fall within CERCLA’s definition of response costs, even though the State is not undertaking to do the removal. See id. §§ 9601(23), (24), (25). Contrary to Shore’s claims, the State’s motion for summary judgment sought such costs, and Shore had ample opportunity for discovery. That a detailed accounting was submitted only at this court’s request for supplemental findings is immaterial; Shore had an opportunity to contest the accounting but failed to make anything more than a perfunctory objection. 1. Covered Persons. CERCLA holds liable four classes of persons: (1) the owner and operator of a vessel (otherwise subject to the jurisdiction of the United States) or a facility/ ! (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) 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 facility owned or operated by another party or entity and containing such hazardous substances, and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities or sites selected by such person. 42 U.S.C. §" } ]

[ { "docid": "12419601", "title": "", "text": "§ 9606 and civil actions under § 9607 for indemnification. The Court in Cooper explained that no provision in CERCLA exists for maintaining an action for contribution when the cleanup is purely voluntary. Cooper, 125 S.Ct. at 584. Here, the Plaintiffs voluntarily initiated cleanup of the site and cannot satisfy the requirement of an existing “specified civil action.” As such, a claim for contribution under § 9613 is not permitted. 2. Indemnification The Plaintiffs also seeks indemnification, or full recovery of costs, under § 9607(a). In order to bring a claim under CERCLA for indemnification, the plaintiff must be an innocent party See Commander, 215 F.3d at 332. “[Pjotentially responsible parties may pursue only contribution claims against other potentially responsible parties and may not seek indemnifica tion.” Id. Potentially responsible parties are barred from seeking indemnification because such a claim, if successful, holds the other party liable for the entire cost of the cleanup. Bedford, 156 F.3d at 423-24. Thus, if the Plaintiffs are potentially responsible, they may not maintain an action for indemnification. A party is potentially responsible under CERCLA for costs associated with a toxic spill at a site, if: (1) the site is a “facility;” (2) a release or threatened release of a “hazardous substance” from the site has occurred; (3) the release or threatened release has caused the plaintiff to incur response costs; and (4) the defendant falls within at least one of the four classes of responsible persons described in § 9607(a) of . CERCLA. 42 ' U.S.C. § 9607(a); U.S. v. Alcan Aluminum Corp., 315 F.3d 179, 180 (2d Cir.2003). The four classes of responsible parties are (1) the current owner and operator of the facility; (2) the owner or operator of the facility at the time hazardous substances were disposed there; (3) any person who generated or arranged for the treatment or disposal of a hazardous substance at the facility; and (4) any person who transported hazardous substances to the facility. 42 U.S.C. § 9607(a)(l)-(4); see also Commander, 215 F.3d at 326; B.F. Goodrich Co. v. Murbha, 958 F.2d 1192, 1198 (2d Cir.1992)." }, { "docid": "16530132", "title": "", "text": "Costs. CERCLA § 107(a)(4), 42 U.S.C. § 9607(a)(4). To establish liability, a plaintiff must demonstrate that (1) there has been a “release” or a “substantial threat of release” of a “hazardous substance” ; (2) from a “facility”; (3) which caused the plaintiff to incur Response Costs; and (4) each of the defendants fits within one of the categories of potentially responsible parties (“PRPs”) identified under CERCLA § 107(a), 42 U.S.C. § 9607(a). A & N Cleaners, 788 F.Supp. at 1322. Among the four classes of PRPs under CERCLA § 107(a) are the current “owner and operator” of the facility. Absent a showing by a preponderance of the evidence that one of the affirmative defenses contained in CERCLA § 107(b), 42 U.S.C. § 9607(b), has been satisfied, PRPs’ potential liability for Response Costs is strict. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192 (2d Cir.1992); New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir.1985). Where the environmental harm is indivisible, liability is also joint and several. B.F. Goodrich, 958 F.2d at 1197. Under the “Third-Party Defense” set forth in CERCLA § 107(b)(3), a defendant is not liable if it establishes that the release or threatened release was caused solely by: (3) an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant ... if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances [the “Due Care Requirement”], and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result for such acts or omissions [the “Precautionary Requirement”]. The second defense relevant to this case, the “Innocent Landowner Defense,” is actually a special ease of the Third-Party Defense. In 1986 Congress created an exception to the “no contractual relationship” requirement of the Third-Party" }, { "docid": "8253547", "title": "", "text": "question often debated, and occasionally misunderstood, by the parties in this case: namely, their respective burdens of proof. As an initial matter, each party bears the burden of showing that its opponent is liable under the terms of § 107(a). Yankee Gas must do this because it brings its claim under that Section, while UGI has the same burden because the language in § 113 allows for contributions only from “any other person who is liable or potentially liable under section 9607(a) of this title,” 42 U.S.C. § 9613(f)(1). Establishing CERCLA liability is not a difficult task, however. Notably, it does not require that “a specific defendant’s waste cause incurrence of clean-up costs.” United States v. Alcan Aluminum Corp., 990 F.2d 711, 721 (2d Cir.1993). As the Second Circuit has said, “[t]he traditional tort concept of causation plays little or no role in the liability scheme.” Instead, CERCLA requires a plaintiff to establish: (1) defendant fits one of the four classes of responsible parties outlined in § 9607(a); (2) the site is a facility; (3) there is a release or threatened release of hazardous substances at the facility; (4) the plaintiff incurred costs responding to the release or threatened release; and (5) the costs and response actions conform to the National Contingency Plan set up under the Act and administered by the EPA in order to prioritize hazardous substance release sites throughout the nation. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir.1992) (“Goodrich II”). The two (of four) “classes of responsible parties” that are relevant in the present case are “the owner and operator of ... a facility,” 42 U.S.C. § 9607(a)(1), and “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,” 42 U.S.C. § 9607(a)(2). Once liability is established, the question is how to allocate that liability. Here the burdens of proof become more complicated. Yankee Gas has argued that UGI “bears the burden of proof for allocation or apportionment in a cost recovery action.” PL’s Pretrial Br. [doc. #" }, { "docid": "5592842", "title": "", "text": "Further, it expressly overturned the line of civil rights cases requiring heightened specificity which the Cash Energy relied upon as its principal example of “the trend toward specificity.” Therefore, in light of the Leatherman decision, we hold that a heightened pleading standard does not apply to CERCLA cases. I. Count One: CERCLA Liability In order to establish a private cost recovery action under CERCLA, plaintiffs must prove 1) that a defendant falls under one of the four categories of covered persons, 2) that the site is a “facility” as defined by CERCLA, 3) that there has been a release or threat of release of a hazardous substance at the facility, 4) that the release or threat of release caused the plaintiff to incur response costs, and 5) that plaintiffs costs were “necessary costs of response ... consistent with the National Contingency Plan.” 42 U.S.C. § 9607(a); B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir.1992). Covered persons under CERCLA’s liability provisions include: 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 facility owned or operated by another party or entity and containing such hazardous substances. 42 U.S.C. § 9607(a)(3). The complaint alleges that each of the moving defendants, Ineo, International Paper, Jones, Lightron, Nep-era, NYUMC, Revere, O & R Utilities and Westchester “arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of solid waste [which it owned or possessed] by another party or entity at the Site,” and that studies performed by the EPA and others have shown that such waste contained hazardous substances making each of those defendants liable, pursuant to § 107(a)(3) of CERCLA, 42 U.S.C. § 9607(a)(3), for all response costs. Plaintiffs claim that their complaint sufficiently alleges that the moving defendants arranged for the disposal or treatment of hazardous substances at the Site. We disagree. Plaintiffs state that they “clearly allege that each of the" }, { "docid": "18970612", "title": "", "text": "operators of facilities at which hazardous substances were disposed,” 3550 Stevens Creek Assocs. v. Barclays Bank of Cal., 915 F.2d 1355, 1357 (9th Cir.1990), and where the environmental harm is indivisible, liability is joint and several, B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir.1992) (citing O’Neil v. Picillo, 883 F.2d 176, 178-79 (1st Cir.1989)). To further its purposes, CERCLA “ ‘authorizes private parties to institute civil actions to recover the costs involved in the cleanup of hazardous wastes from those responsible for their creation.’ ” Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 870 (9th Cir.2001) (en banc) (quoting 3550 Stevens, 915 F.2d at 1357). To establish a prima facie case in a private cost recovery action under CERCLA, a plaintiff must demonstrate that (1) the site on which the hazardous substances are contained is a “facility” under CERCLA’s definition of that term, ... (2) a “release” or “threatened release” of any “hazardous substance” from the facility has occurred, ... (3) such “release” or “threatened release” has caused the plaintiff to incur response costs that were “necessary” and “consistent with the national contingency plan,” ... and (4) the defendant is within one of four classes of persons subject to the liability provisions of [42 U.S.C. § 9607(a) ]. Id. at 870-71 (quoting 3550 Stevens, 915 F.2d at 1358). Even if a plaintiff establishes a prima facie case, however, a defendant can avoid liability through one of the affirmative defenses provided in 42 U.S.C. § 9607(b). These defenses refer to situations in which the release of hazardous substances “was caused solely by an act of God, an act of war, or certain acts or omissions of third parties other than those with whom a defendant has a contractual relationship.” Murtha, 958 F.2d at 1198 (citing 42 U.S.C. § 9607(b)). The latter is variously referred to as the “innocent landowner,” “third-party,” or “innocent-party” defense. See Carson Harbor, 270 F.3d at 871; United States v. Honeywell Int’l, Inc., 542 F.Supp.2d 1188, 1199 (E.D.Cal.2008) (England, J.). Here, the City contends that plaintiff cannot satisfy either the first or fourth" }, { "docid": "13042818", "title": "", "text": "of the evidence that one of the affirmative defenses contained in ... 42 U.S.C. § 9607(b), has been satisfied, PRPs’ potential liability for Response Costs is strict.” United States v. A & N Cleaners and Launderers, Inc., 854 F.Supp. 229, 237 (S.D.N.Y.1994) (citing B.F. Goodrich Co. v. Murtha, 958 F.2d 1192 (2d Cir.1992) and New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir.1985)). When the environmental harm to be remediated is indivisible, liability is also joint and several. Id. (citing B.F. Goodrich, 958 F.2d at 1197). It is undisputed that both the soil and ground water at the site contain “hazardous substances” within the meaning of 42 U.S.C. § 9601(14), that the presence and potential or actual migration of such substances constitutes a “release” or threatened “release,” and that the Site is a “facility.” Moreover, the United States concedes that it is a liable party under 42 U.S.C. § 9607(a) and therefore subject to a declaratory judgment for future response costs incurred by the plain tiff pursuant to 42 U.S.C. § 9613(g)(2) with regard to PCB contamination at the Site. However, the United States contests liability for the release of hazardous substances at the Site other than PCBs, and the District disputes liability for any contamination at the Site, maintaining that the plaintiff has failed to demonstrate either that his claims are ripe or that the District caused the contamination at the Site. Because the plaintiff fails to demonstrate that his past investigative costs were necessary and consistent with the NCP he is not entitled to recover them from the defendants. And because he fails to demonstrate that he is entitled to an affirmative defense thereto, the plaintiff is liable as a current owner of the Site. Therefore, summary judgment is warranted with respect to the defendants’ liability for past response costs incurred by the plaintiff and the plaintiffs liability. However, disputed issues of material fact preclude the award of summary judgment with respect to the liability of the United States and the District for future response costs necessitated by the lead and mercury contamination at the Site." }, { "docid": "2223928", "title": "", "text": "CERCLA cases. While many CERCLA actions have been brought by government contractors against the U.S. government, only a few appear to have reached the allocation stage. And none of those address the key issue in this case: whether the fact that the government contractor has been indirectly recovering its response costs from the U.S. government-as-client through U.S.-government contracts should, as an equitable consideration, reduce its recovery from the U.S. government-as-PRP under CERCLA. LEGAL FRAMEWORK Congress enacted CERCLA “in response to the serious environmental and health risks posed by industrial pollution.” United States v. Bestfoods, 524 U.S. 51, 55, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998). The statute “was designed to promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination.” Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009) (internal quotation marks omitted). By requiring responsible parties to pay for cleanup efforts, CERCLA also ensures that “the taxpayers [are] not required to shoulder the financial burden of a nationwide cleanup.” B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992). In furtherance of these goals, CERCLA allows private parties to recover the costs of cleaning up hazardous wastes from several broad categories of PRPs. 42 U.S.C. § 9607(a)(1)-(4). Liability under these provisions is strict and, by default, joint and several. PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714 F.3d 161, 168 (4th Cir.2013). Relevant to this action, PRPs include any past “owner” or “operator” and any “arranger.” See 42 U.S.C. § 9607(a)(2)-(3). Under CERCLA, a person is liable as a past “owner” or “operator” if he “at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” Id. § 9607(a)(2). The phrase “owner or operator” is unhelpfully defined “only by tautology ... as ‘any person owning or operating’ a facility.” Bestfoods, 524 U.S. at 56, 118 S.Ct. 1876 (quoting 42 U.S.C. § 9601(20)(A)(ii)). Courts consider “owner” and" }, { "docid": "22209134", "title": "", "text": "provide for the clean-up of hazardous substance sites. Specifically, section 104 authorizes the President to respond to a release or substantial threat of a release of hazardous substances into the environment by: (1) removing or arranging for the removal of hazardous substances; (2) providing for remedial action relating to such hazardous substances; and (3) taking any other response measure consistent with the National Contingency Plan that the President deems necessary to protect the public health or welfare or the environment. 42 U.S.C. § 9604(a). The President has delegated most of his authority under CERCLA to EPA. CERCLA’s bite lies in its requirement that responsible parties pay for actions undertaken pursuant to section 104. Under section 107, CERCLA liability is imposed where the plaintiff establishes the following four elements: (1) the defendant falls within one of the four categories of “responsible parties”; (2) the hazardous substances are disposed at a “facility”; (3) there is a “release” or threatened release of hazardous substances from the facility into the environment; (4) the release causes the incurrence of “response costs”. 42 U.S.C. § 9607. See also B.F. Goodrich, at 1198; United States v. Serafini, 750 F.Supp. 168, 170 (M.D.Pa.1990); United States v. Wade, 577 F.Supp. 1326, 1333 (E.D.Pa.1983). Reimbursement for response costs can be obtained in a variety of ways. For example, the Government can clean the sites itself using monies in the Hazardous Substance Response Trust Fund established by section 221 of CERCLA, 42 U.S.C. § 9631 and now the Hazardous Substance Superfund or “Superfund” (see 26 U.S.C. § 9507); EPA can then seek reimbursement from responsible parties, as it has done in this case. In addition, section 106(a) permits EPA to request the Attorney General to “secure such relief as may be necessary to abate such danger or threat” by filing a civil action in federal district court. That section also permits EPA to issue administrative orders “as may be necessary to protect public health and welfare and the environment.” Finally, and of great significance in this case, CERCLA imposes strict liability on responsible parties. 42 U.S.C. § 9601(32). See Dedham Water" }, { "docid": "7981524", "title": "", "text": "conditions they created. Id. at 1112, quoted in Dedham, 805 F.2d at 1081. CERCLA establishes an “array of mechanisms” to achieve its objectives. Relevant here, the Government may take response action whenever there is a release or threatened release of “hazardous substances” and then sue certain persons for reimbursement of the cleanup costs. 42 U.S.C. § 9604. To establish liability, the Government must demonstrate that (1) there has been a “release” or a “substantial threat of release” of a “hazardous substance” ; (2) from a “facility” ; (3) which caused the Government to incur response costs; and (4) each of the defendants fits within one of the categories of responsible parties identified under § 107(a) of CERCLA. 42 U.S.C. § 9607(a); CPC Infl, Inc. v. Aerojet-Gen. Corp., Ill F.Supp. 549 (W.D.Mich.1991). Among the four classes of potentially liable defendants under CERCLA § 107(a) are the current “owner and operator” of the facility, 42 U.S.C. § 9607(a)(1), and any person who at the time of disposal of any hazardous substance “owned or operated” any facility at which such hazardous substances were disposed. Id. § 9607(a)(2). These so-called “covered parties” are liable for “all costs of removal or remedial action incurred by the United States or a State not inconsistent with the national contingency plan,” if “there is a release, or a threatened release which causes the incur-rence of response costs, of a hazardous substance” from the facility. Id. § 9607(a)(4). Absent a showing by a preponderance of the evidence that one of the affirmative defenses contained in § 107(b), id. § 9607(b), has been satisfied, the liability of covered parties for costs incurred in the clean-up is strict. B.F. Goodrich Co. v. Harold Murtha, 958 F.2d 1192, 1198 (2d Cir.1992); New York v. Shore Realty Corp., 759 F.2d 1032, 1044 (2d Cir.1985); United States v. Monsanto Co., 858 F.2d 160, 167 & n. 11 (4th Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989). Where the environmental harm is indivisible, liability is also joint and several. B.F. Goodrich, 958 F.2d at 1198; O’Neil v. Picillo, 883 F.2d" }, { "docid": "12380199", "title": "", "text": "With respect to plaintiffs claims for contribution and declaratory relief under § 113 of CERCLA, defendants argue that plaintiff has failed to state a claim upon which relief may be granted because plaintiff cannot establish that Saltire or Scovill is a potentially responsible party under CERCLA. They assert that plaintiff must present evidence that Saltire or Scovill arranged for the disposal of hazardous substances on the Store Avenue Property or that they were owners or operators of the property at the time when hazardous substances were disposed of on the property. Similarly, McHugh’s Estate asserts that there is no evidence that any disposal of hazardous wastes took place during McHugh, Sr.’s ownership of the property. Additionally, they argue that plaintiff has not incurred any response costs and therefore lacks standing to bring a claim under CERCLA. 1. Defendants as Potentially Responsible Parties In order to hold any of the defendants liable under CERCLA, the first element that plaintiff must prove is that they are responsible parties under § 107(a). CERCLA makes four classes of persons liable: (1) present owners and operators of facilities that accepted hazardous substances, (2) past owners and operators of such facilities, (3) generators of hazardous substances, and (4) certain transporters of hazardous substances. 42 U.S.C. § 9607(a). A prior owner or operator of property is a responsible party under CERCLA if he controlled the site at the time of “disposal” of hazardous substances. ABB Industrial Systems, Inc. v. Prime Technology, Inc., 120 F.3d 351, 356 (2d Cir.1997). As the courts have noted, “[t]he Act’s broad reach extends liability to all those contributing to — from generation through disposal — the problems caused by hazardous substances.” B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir.1992). In this case, there is sufficient evidence for plaintiff to withstand defendants’ summary judgment motions that Saltire, as the successor to Scovill Manufacturing, is a potentially a responsible party. Scovill Manufacturing had been dumping materials from its manufacturing operations on the landfill, including the Store Avenue Property, for many years. Defendants argue that the mere fact that Scovill Manufacturing owned" }, { "docid": "21606724", "title": "", "text": "waste spills and, where an “imminent and substantial endangerment to the public health exists,” to take legal action in order to compel potentially liable parties to undertake their own private clean-up efforts. Murtha, 958 F.2d at 1196; 42 U.S.C. § 9606(a). In enacting CERCLA, Congress established four groups of responsible parties, all of whom are liable regardless of intent, and provided a limited number of narrowly constructed defenses to CERCLA liability. 42 U.S.C. § 9607(a) and (b). Through this scheme of liability Congress envisioned a system that would permit the EPA to recoup its costs from a source of funds other than the taxpayers. It was Congress’ intent that CERCLA be construed liberally in order to accomplish these goals. Murtha, at 1198. In order to establish a prima facie case of CERCLA liability, a plaintiff must prove that (1) the defendant is a responsible party as defined by section 9607(a)(l)-(4); (2) that the site at issue is a “facility” as defined by section 9601(9); (3) that there has been a release of hazardous substances at the facility or that such a release is threatened; (4) that the plaintiff has incurred response costs in connection with that release; and that (5) the costs incurred and the response actions taken conform to the National Contingency Plan set up under CERCLA. Id. at 1198. Under CERCLA’s liability provision, responsible parties include generators of hazardous waste, present or past owners at the time of disposal of facilities where hazardous wastes are disposed of, transporters of hazardous wastes, and those who arrange for the disposal or transport of hazardous waste. 42 U.S.C. § 9607(a); Murtha, at 1198; Florida Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1317 (11th Cir.1990). The only issue raised on this appeal is whether the defendants-ap-pellees are liable as entities that arranged for the disposal of a hazardous substance. B. Arranger Liability Under § 9607(a)(3): Section 9607(a)(3) provides that, 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" }, { "docid": "12419602", "title": "", "text": "party is potentially responsible under CERCLA for costs associated with a toxic spill at a site, if: (1) the site is a “facility;” (2) a release or threatened release of a “hazardous substance” from the site has occurred; (3) the release or threatened release has caused the plaintiff to incur response costs; and (4) the defendant falls within at least one of the four classes of responsible persons described in § 9607(a) of . CERCLA. 42 ' U.S.C. § 9607(a); U.S. v. Alcan Aluminum Corp., 315 F.3d 179, 180 (2d Cir.2003). The four classes of responsible parties are (1) the current owner and operator of the facility; (2) the owner or operator of the facility at the time hazardous substances were disposed there; (3) any person who generated or arranged for the treatment or disposal of a hazardous substance at the facility; and (4) any person who transported hazardous substances to the facility. 42 U.S.C. § 9607(a)(l)-(4); see also Commander, 215 F.3d at 326; B.F. Goodrich Co. v. Murbha, 958 F.2d 1192, 1198 (2d Cir.1992). Potentially responsible persons are held strictly hable for cleanup costs incurred by any other person. B.F. Goodrich v. Betkoski, 99 F.3d 505, 514 (2d Cir.1996); New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.1985). Thus, under the plain language of the statute, it would appear that the Plaintiffs are potentially responsible under § 9607(a). CERCLA provides a limited number of affirmative defenses. “Liability under § 9607(a) is precluded only by a defense that the release or threatened release was caused solely -by an act of God, an act of war, or certain acts or omissions of third parties other than those with whom a defendant has a contractual relationship.” Murtha, 958 F.2d 1192, 1198 (2d Cir.1992); see 42 U.S.C. § 9607(b). Despite the inapplicability of these defenses, the Plaintiffs set forth three theories as to why they are not potentially responsible parties: (1) the site was not a “facility” within the meaning of CERCLA until the Fire Company responded; (2) AMW was not an “operator” of the site within the meaning of" }, { "docid": "16530131", "title": "", "text": "Superfund’s problems are slow, costly, unpredictable, ineffective, and often unnecessary cleanups.... We are throwing ... money down the drain if we try to return sites to pristine conditions, when that’s not technically feasible. Or if we clean up sites where risks are negligible. The problem is that Cadillac remedies rob resources from sites where health threats are real and they delay all cleanups.”). While, like the Walrus and the Carpenter, we cherish the ideal of a completely unsullied environment, the translation of this ideal into CERCLA cleanup standards has hampered our ability to respond realistically to the environmental harms we face. Under CERCLA, the Government may take response action whenever there is a release or threatened release of “hazardous substances,” and then sue certain persons for reimbursement of the cleanup costs (“Response Costs”). CERCLA § 104, 42 U.S.C. § 9604. Private parties are also entitled, and encouraged, to implement remedial action under CERCLA. See Donald W. Stever, Law of Chemical Regulation and Hazardous Waste § 6.06[2][d][ii][C]. These parties may thereafter sue to recover their Response Costs. CERCLA § 107(a)(4), 42 U.S.C. § 9607(a)(4). To establish liability, a plaintiff must demonstrate that (1) there has been a “release” or a “substantial threat of release” of a “hazardous substance” ; (2) from a “facility”; (3) which caused the plaintiff to incur Response Costs; and (4) each of the defendants fits within one of the categories of potentially responsible parties (“PRPs”) identified under CERCLA § 107(a), 42 U.S.C. § 9607(a). A & N Cleaners, 788 F.Supp. at 1322. Among the four classes of PRPs under CERCLA § 107(a) are the current “owner and operator” of the facility. Absent a showing by a preponderance of the evidence that one of the affirmative defenses contained in CERCLA § 107(b), 42 U.S.C. § 9607(b), has been satisfied, PRPs’ potential liability for Response Costs is strict. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192 (2d Cir.1992); New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir.1985). Where the environmental harm is indivisible, liability is also joint and several. B.F. Goodrich, 958 F.2d at 1197. Under the" }, { "docid": "8253548", "title": "", "text": "there is a release or threatened release of hazardous substances at the facility; (4) the plaintiff incurred costs responding to the release or threatened release; and (5) the costs and response actions conform to the National Contingency Plan set up under the Act and administered by the EPA in order to prioritize hazardous substance release sites throughout the nation. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir.1992) (“Goodrich II”). The two (of four) “classes of responsible parties” that are relevant in the present case are “the owner and operator of ... a facility,” 42 U.S.C. § 9607(a)(1), and “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,” 42 U.S.C. § 9607(a)(2). Once liability is established, the question is how to allocate that liability. Here the burdens of proof become more complicated. Yankee Gas has argued that UGI “bears the burden of proof for allocation or apportionment in a cost recovery action.” PL’s Pretrial Br. [doc. # 56] at 3. In support, it cites as “dispositive” Burlington Northern, in which the Supreme Court held that a defendant in a § 107(a) claim bears the burden of showing a “reasonable basis” on which the environmental damage at a site can be divided and the liability apportioned. Burlington Northern, 129 S.Ct. at 1881. If the defendant does this, it “will be held liable only for the harm the court finds it caused.” Goodrich Corp. v. Town of Middlebury, 311 F.3d 154, 170 n. 16 (2d Cir.2002) (“Goodrich III”). Yankee Gas also claims that a party seeking contribution under § 113(f) “ ‘bears the burden of proof to show that ‘the court must allocate response costs among liable parties in an equitable manner.’” PL’s Pretrial Br. [doc. #56] at 3 (quoting Goodrich III, 311 F.3d at 168). This is not quite right. The Second Circuit case quoted actually says: [T]he statute envisions a two-part inquiry: First, the court must determine whether the defendant is “liable” under CERCLA § 107(a); Second, the court must allocate response" }, { "docid": "22985948", "title": "", "text": "107(a) and § 113(f)(1) A. An Action Is Not Available Under § 107(a) for a Potentially Responsible Party CERCLA, as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), provides two legal avenues by which a private party can recoup some or all of the costs associated with an environmental cleanup: a cost recovery action under § 107(a) and a contribution action under § 113(f)(1)- Bedford sued Sills and the Man-heimers under both theories. To decide whether Bedford may recover under both CERCLA provisions, we must clarify the relationship between them. The original CERCLA legislation enacted in 1980 created the cost recovery scheme under § 107(a). See Comprehensive Environmental Responses, Compensation, and Liability Act of 1980, Pub.L. No. 96-510, § 107(a), 94 Stat. 2767, 2781 (codified as amended at 42 U.S.C. § 9607(a)). Congress established four classes of “potentially responsible persons,” including: (1) present owners and operators of facilities that accepted hazardous substances; (2) past owners and operators of such facilities; (3) generators of hazardous substances; and (4) certain transporters of hazardous substances. See CERCLA § 107(a), 42 U.S.C. § 9607(a); see also B.F. Goodrich v. Betkoski, 99 F.3d 505, 514 (2d Cir.1996), cert. denied, — U.S.-, 118 S.Ct. 2318, 141 L.Ed.2d 694 (1998). Potentially responsible persons are held strictly liable for, among others, necessary cleanup costs “incurred by any other person consistent with the national contingency plan.” CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B); see also Betkoski, 99 F.3d at 514; New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.1985). Where the environmental harm is indivisible, multiple responsible persons will be jointly and severally liable for cleanup costs. See B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir.1992). In its original form, CERCLA lacked a specific provision permitting a potentially responsible person that had incurred cleanup costs to seek contribution from other hable parties. Numerous district courts, in response, interpreted CERCLA § 107(a) to imply such a cause of action. See Key Tronic Corp. v. United States, 511 U.S. 809, 816, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994). With the 1986 enactment" }, { "docid": "12419603", "title": "", "text": "Potentially responsible persons are held strictly hable for cleanup costs incurred by any other person. B.F. Goodrich v. Betkoski, 99 F.3d 505, 514 (2d Cir.1996); New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.1985). Thus, under the plain language of the statute, it would appear that the Plaintiffs are potentially responsible under § 9607(a). CERCLA provides a limited number of affirmative defenses. “Liability under § 9607(a) is precluded only by a defense that the release or threatened release was caused solely -by an act of God, an act of war, or certain acts or omissions of third parties other than those with whom a defendant has a contractual relationship.” Murtha, 958 F.2d 1192, 1198 (2d Cir.1992); see 42 U.S.C. § 9607(b). Despite the inapplicability of these defenses, the Plaintiffs set forth three theories as to why they are not potentially responsible parties: (1) the site was not a “facility” within the meaning of CERCLA until the Fire Company responded; (2) AMW was not an “operator” of the site within the meaning of CERC-LA; and (3) Antoniou was an innocent owner. a. “Facility” Defense The term “facility” is defined in section 101 of CERCLA. “Facility” means “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.” 42 U.S.C. § 9601(9). “Hazardous substance” is defined to include any element, compound, mixture, solution, or substance designated by the Environmental Protection Agency (EPA) as presenting substantial danger to the public health or welfare or the environment when released to the environment. Id. § 9601(14). Thus, to establish that a site is a “facility” under CERCLA, one need only show that a hazardous substance has been placed there or has otherwise come to be located at the site. The Plaintiffs’ argument that the site was not a facility under CERCLA defies logic. A critical element to the Plaintiffs’ claim for indemnification is that hazardous substances contaminated the site. The Plaintiffs admit that their business used and stored various types of hazardous chemicals, including sodium chromate, Ammonium Fluoride, Chromic Acid, Sodium" }, { "docid": "7612171", "title": "", "text": "a ‘broad remedial statute,”’ B.F. Goodrich v. Betkoski, 99 F.3d 505, 514 (2d Cir.1996) (quoting B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1197 (2d Cir.1992) (“Murtha I”)), cert. denied, — U.S. -, 118 S.Ct. 2318, 141 L.Ed.2d 694 (1998), enacted to assure “that those responsible for any damage, environmental harm, or injury from chemical poisons bear the costs of their actions.” Id. (quoting S. Rep. 848, 96th Cong., 2d Sess. 13 (1980), reprinted in 1 Senate Comm. On Env’t and Pub. Works, Legislative History of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, at 305, 320 (1983)). “As a remedial statute, CERCLA should be construed liberally to give effect to its purposes.” Id. (citing Schiavone v. Pearce, 79 F.3d 248, 253 (2d Cir.1996)). CERCLA addresses in particular the costs of responding to the release or threatened release of “hazardous substances,” as that term is defined by CERC-LA § 101(14) (42 U.S.C. § 9601(14)). Towards that end, section 107 of the statute (42 U.S.C. § 9607) provides a private right of action for the recovery of such costs in certain circumstances. In determining liability under § 107, the quantity or concentration of the hazardous substance is not a factor. See United States v. Alcan Aluminum Corp., 990 F.2d 711, 720 (2d Cir.1993)(“Congress planned for the ‘hazardous substance’ definition to include even minimal amounts of pollution.”); Murtha I, 958 F.2d at 1200. Rather, in order to make out a prima facie case under § 107, a plaintiff must establish five elements. See Betkoski, 99 F.3d at 514; Alcan, 990 F.2d at 719-20; Murtha I, 958 F.2d at 1198. The plaintiff must prove that: First, the defendant falls within one of the four categories of potentially responsible parties set forth in § 107(a) (42 U.S.C. § 9607(a)). See Betkoski, 99 F.3d at 514. The categories include: (1) the owner and operator of ... a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise" }, { "docid": "13042817", "title": "", "text": "Site until it has funding from a prospective purchaser, a development partner, or the United States and/or the District. DISCUSSION Under the CERCLA, both the Government and private parties may take response action whenever there is a release or threatened release of “hazardous sub stances,” and then sue certain persons for reimbursement of the cleanup costs (“Response Costs”). 42 U.S.C. §§ 9604, 9607(a)(4). In order to establish liability under the CERCLA, the plaintiff must establish that (1) a release or threatened release of a hazardous substance has occurred at the Site; (2) the Site is a “facility”; (3) the release or threatened release has caused the plaintiff to incur response costs; and (4) the defendants are potentially responsible parties (“PRPs”). Town of Munster v. Sherwin-Williams Co., 27 F.3d 1268, 1273 (7th Cir.1994); Amoco Oil v. Borden, Inc., 889 F.2d 664, 668 (5th Cir.1989); New York v. Shore Realty Corp., 759 F.2d 1032, 1043 (2d Cir.1985); Northwestern Mutual Life Ins. Co. v. Atlantic Research Corp., 847 F.Supp. 389, 395 (E.D.Va.1994). “Absent a showing by a preponderance of the evidence that one of the affirmative defenses contained in ... 42 U.S.C. § 9607(b), has been satisfied, PRPs’ potential liability for Response Costs is strict.” United States v. A & N Cleaners and Launderers, Inc., 854 F.Supp. 229, 237 (S.D.N.Y.1994) (citing B.F. Goodrich Co. v. Murtha, 958 F.2d 1192 (2d Cir.1992) and New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir.1985)). When the environmental harm to be remediated is indivisible, liability is also joint and several. Id. (citing B.F. Goodrich, 958 F.2d at 1197). It is undisputed that both the soil and ground water at the site contain “hazardous substances” within the meaning of 42 U.S.C. § 9601(14), that the presence and potential or actual migration of such substances constitutes a “release” or threatened “release,” and that the Site is a “facility.” Moreover, the United States concedes that it is a liable party under 42 U.S.C. § 9607(a) and therefore subject to a declaratory judgment for future response costs incurred by the plain tiff pursuant to 42 U.S.C. § 9613(g)(2) with" }, { "docid": "6586870", "title": "", "text": "vessel or a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise arranged for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance. 42 U.S.C. § 9607(a). The four categories of covered persons delineated by the statute reach back through the causal chain from those who ultimately dispose of a hazardous substance to those who transport and generate it. OHM Remediation Servs. v. Evans Cooperage, Co., Inc., 116 F.3d 1574, 1578 (5th Cir.1997), citing, B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir.1992). Moreover, as OHM Remediation Senices explains, “Because the Act imposes strict liability, Bell Petroleum, 3 F.3d [889,] ... 897 [ (5th Cir.1993) ], plaintiffs generally need not prove causation, only that the defendant is a ‘covered person.’ ” 116 F.3d at 1578, quoting, United States v. Alcan Aluminum Corp., 990 F.2d 711, 721 (2d Cir.1993). The appellees in the case before the court contend that parties who arrange for the treatment of hazardous substances, whether or not such substances are waste, are covered persons who are liable under the statute. Appellants argue, on the other hand, that the statute encompasses only those parties who arrange for the treatment or disposal of hazardous substances which are also waste. The court finds that the appellees read the statute too broadly. Section 9601 of CERCLA states, “The term[ ] ‘treatment’ shall have the meaning provided in section 1004 of the Solid Waste Disposal Act[42 U.S.C.A. § 6903].” 42 U.S.C. § 9601(29). The Solid Waste" }, { "docid": "21606723", "title": "", "text": "influence the dealers’ waste disposal practices. As this appeal comes to us on the district court’s grant of summary judgment in favor of the defendants-appellees, we must engage in a de novo review of the record. We will affirm the district court only if we agree that there is no genuine issue as to any material facts, and that the appellant is entitled to judgment as a matter of law. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192 (2d Cir.1992). A. CERCLA’s Statutory Scheme: CERCLA is a broad, remedial statute enacted by Congress in order to enable the Environmental Protection Agency (the “EPA”) to respond quickly and effectively to hazardous waste spills that threaten the environment, and to ensure “that those responsible for any damage, environmental harm, or injury from chemical poisons bear the costs of their actions.” S.Rep. No. 848, 96th Cong., 2d Sess. 13 (1980), U.S.Code Cong. & Admin.News 1980, 6119, reprinted in 1 CERCLA Legislative History at 320. Under CERCLA, the EPA is authorized to undertake remedial efforts to clean up hazardous waste spills and, where an “imminent and substantial endangerment to the public health exists,” to take legal action in order to compel potentially liable parties to undertake their own private clean-up efforts. Murtha, 958 F.2d at 1196; 42 U.S.C. § 9606(a). In enacting CERCLA, Congress established four groups of responsible parties, all of whom are liable regardless of intent, and provided a limited number of narrowly constructed defenses to CERCLA liability. 42 U.S.C. § 9607(a) and (b). Through this scheme of liability Congress envisioned a system that would permit the EPA to recoup its costs from a source of funds other than the taxpayers. It was Congress’ intent that CERCLA be construed liberally in order to accomplish these goals. Murtha, at 1198. In order to establish a prima facie case of CERCLA liability, a plaintiff must prove that (1) the defendant is a responsible party as defined by section 9607(a)(l)-(4); (2) that the site at issue is a “facility” as defined by section 9601(9); (3) that there has been a release of hazardous substances at" } ]

[ { "docid": "4344972", "title": "", "text": "negotiated with the Committee for several weeks over the terms of their compensation for their work as financial advisors. After listening to the testimony presented at the November 19, 2007 hearing, it is clear that these terms were not the result of “bad drafting” or “mistake.” On the contrary, the parties appeared to have created a practical solu tion for the time: set the amount of monthly compensation now and address the issue of a success, completion or other “back-end” fee at a later date. For reasons explained below, the Court finds neither FTI’s nor Lazard’s requests for a success fee were “preapproved” in their retention applications under Bankruptcy Code Section 328. Furthermore, their request for a success fee also fails to meet the standard outlined under Bankruptcy Code Section 330. I. Review of FTI’s and Lazard’s Request for Success Fees A. FTI FTI was retained pursuant to Bankruptcy Code Sections 328(a) and 1103(a), which cover the compensation of professionals retained by a committee. Section 328(a), in pertinent part, authorizes, with court approval, a “committee appointed under section 1102 of this title,” to “employ ... a professional person under section 327 or 1103 ... on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, on a fixed or percentage fee basis, or on a contingent fee basis.” 11 U.S.C. § 328 (2008). Section 1103(a) authorizes a creditor’s committee, with court approval, to select and employ agents to represent to perform services on behalf of the committee. 11 U.S.C. § 1103 (2008). FTI was to be compensated pursuant to the procedures set forth in Section 330 of the Bankruptcy Code, although its monthly compensation and expenses would not be challenged except under the standard of review established in Bankruptcy Code Section 328(a). FTI Retention Order at p. 2. Under Section 328(a), professionals such as FTI, may obtain pre-approval of their compensation arrangements from the Court. The “pre-approval” affords the professional assurances the amount of compensation approved will not be modified by the Court unless it is proven that the amount was “improvident in light developments" } ]

[ { "docid": "1191974", "title": "", "text": "reached the opposite conclusion in In re Orthopaedic Technology, Inc., 97 B.R. 596 (Bankr.D.Colo.1989) and Cavazos v. Simmons, 90 B.R. 234 (Bankr.N.D.Tex.1988). In each of these cases, the court concluded that 11 U.S.C. § 326 did not limit the compensation of a paraprofessional employed by a trustee. The court in Berglund Construction refused to follow the decisions in Cavazos and Orthopaedic, which depended on the statutory interpretation that 11 U.S.C. § 326 applied only to the trustee for his or her personal services. In re Berglund Construction, 142 B.R. at 949; accord In re Lanier Spa, Inc., 99 B.R. 490 (Bankr.N.D.Ga.1989); In re Prairie Central Railway Co., 87 B.R. 952 (Bankr.N.D.Ill.). To follow the reasoning in Cava-zos and Orthopaedic would render 11 U.S.C. § 326 meaningless and potentially allow for abuse in trustee fee applications. In re Berglund Construction, 142 B.R. at 949-50. 2. Section 330 Compensation to Professionals Employing Paralegals Section 330 of the Bankruptcy Code awards to “a professional person employed under § 327,” reasonable compensation for actual, necessary services rendered by such professional person or attorney, as the case may be, and by any paraprofessional persons employed by such attorney. In other words, section 330 provides for the compensation of paralegals employed by an attorney, but that attorney must be employed by the trustee under 11 U.S.C. § 327. The legislative history to 11 U.S.C. § 330 reveals that Congress understood § 330(a) to “provide for compensation of paraprofessionals employed by professional persons employed by the estate of the debtor.” Congress included this provision to encourage attorneys to use paraprofessional assistance when possible to reduce the cost of administering bankruptcy cases. Congress wanted the practice under the Bankruptcy Code to mirror that under nonbank-ruptcy cases, where the work involved could easily be handled by an attorney’s assistant at much lower cost to the estate. See H.R.Rep. No. 595 to accompany H.R. No. 8200, 95th Cong., 1st Sess. 329, 330 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 40-41 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5825-5827. As with the restriction § 330 places on compensation of the trustee" }, { "docid": "22574984", "title": "", "text": "or reimbursement of necessary expenses, from the estate shall file with the court an application ...” (emphasis added). Moreover, if a professional in possession of estate funds takes the funds as compensation without a court order, that professional would violate the automatic stay. 11 U.S.C. § 362(a)(3) (prohibiting “any act ... to exercise control over property of the estate”). Similarly, a debtor in possession who transferred estate funds to a professional without court order would violate Section 363(b), which requires court approval, after notice and hearing, before estate property is used outside of the ordinary course of the debtor's business (and the employment of bankruptcy professionals would presumably not be in the ordinary course of business). The rationale for requiring court approval of a profe, \" mal’s compensation from the estate was set forth in In re Ross, 88 B.R. 471, 475 (Bankr.M.D.Ga.), remanded on other grounds, 94 B.R. 210 (M.D.Ga.1988): The funds of a bankruptcy estate are trust funds. The Court has a duty to see that these funds are administered in a manner consistent with the intent of the Bankruptcy Code. This duty exists independent of any objections that may be filed by parties in interest. Thus, an attorney for the trustee may only receive payment pursuant to a court order authorizing the trustee to disburse such funds. At the same time, the fee application procedure only applies when a professional is seeking an award payable from the estate. Nothing in the provisions outlined above authorizes a court to award compensation or reimbursement of expenses from a source other than the estate. To the contrary, an award of compensation under Section 330 is necessarily payable from the estate, since it becomes an administrative expense pursuant to Section 503(b)(2), which is in turn a priority expense under Section 507(a)(1). Such expenses must either be paid directly from liquidation of the estate, pursuant to Section 726(a)(1), or, indirectly, after the estate vests in the debtor upon confirmation, through a plan that provides for the payment of the expenses in full, pursuant to Section 1129(a)(9), Section 1222(a)(2), or Section 1322(a)(2). Professionals" }, { "docid": "15903560", "title": "", "text": "court’s interpretation of the applicable law is reviewed de novo, and its findings of fact are reviewed for clear error. See In re Claremont Acquisition, 113 F.3d at 1031. A bankruptcy court’s decision on the amount of fees to be awarded is reviewed for an abuse of discretion. See Neben & Starrett, Inc. v. Chartwell Financial Corp. (In re Park-Helena Corp.), 63 F.3d 877, 880 (9th Cir.1995). III. Analysis The outcome of this case turns upon the relationship between two different Bankruptcy Code provisions, 11 U.S.C. §§ 328 and 330. A. The Statutes In pertinent part, 11 U.S.C. § 328, reads: Limitation on compensation of professional persons (a) The trustee, or a committee appointed under section 1102 of this title, with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. 11 U.S.C. § 330 provides: Compensation of officers (a)(1) After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, an examiner, a professional person employed under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses. (2) The court may, on its own motion or on the motion of the United States Trustee, the United States Trustee for the District or Region, the trustee for the estate, or any other party in interest, award compensation that is less" }, { "docid": "4727327", "title": "", "text": "abused its discretion or erroneously applied the law.” Boldt v. Crake (In re Riverside-Linden Investment Co.), 945 F.2d 320, 322 (9th Cir.1991). DISCUSSION The bankruptcy code contains specific provisions governing compensation of professionals. Section 330 provides: After notice to any parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328 and 329 of this title, the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor’s attorney (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney 11 U.S.C. § 330. The provision at issue here, governing professionals employed by a trustee, states: The trustee ... with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. 11 U.S.C. § 328(a). Under section 328, where the bankruptcy court has previously approved the terms for compensation of a professional, when the professional ultimately applies for payment, the court cannot alter those terms unless it finds the original terms “to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions.” In re Confections by Sandra, Inc., 83 B.R. 729, 731 (Bankr. 9th Cir.1987); Seiler v. First Nat’l Bank of Babbitt (In re Benassi), 72 B.R. 44, 47-48 (Bankr.D.Minn.1987); see also Unsecured Creditors’ Comm. v. Puget Sound Plywood, Inc., 924 F.2d 955, 960 (9th Cir.1991) (citing Benassi; section 328 “applies where the court has validated a" }, { "docid": "20274706", "title": "", "text": "facts regarding the liability of Victoria Blackburn. In ruling on professional fees as an administrative expense claim, Debtors request that the Court specify the specific amounts that Debtors sought in their fee petition. Prior to Debtors’ conversion from Chapter 13 to Chapter 7, Debtors’ attorneys, Myler, Ruddy & McTavish, and Debtors’ valuation expert, James D. Keith, sought compensation for post-petition services in their representation of Debtors in their adversary trial and priority cost of administrative claim, pursuant to 11 U.S.C. §§ 330, 503, 507. Keith’s application for compensation, dated May 11, 2009, sought $6760.00 in fees and $142.90 in expenses. Debtors’ counsel’s application for compensation, dated May 11, 2009, sought $18765.00 in fees and $2535.89 in expenses. Section 329(b) of the Bankruptcy Code effectively allows the Court to determine whether the fees charged by the debtor’s attorney are excessive and, if so, the Court may cancel any compensation agreement between the attorney and the client. See In re Mortakis, 405 B.R. at 297 (Bankr.N.D.Ill.2009) (citing In re Wiredyne, Inc., 3 F.3d 1125, 1127 (7th Cir.1993)). Section 329(a) requires a debtor’s attorney to “file with the court a statement of the compensation paid or agreed to be paid ... and the source of such compensation.” Id. (quoting 11 U.S.C. § 329(a)). Bankruptcy courts have wide discretion to determine reasonable compensation for actual and necessary services. In re Wildman, 72 B.R. 700, 705 (Bankr.N.D.Ill.1987). Section 330(a)(1) provides: (a)(1) After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to ... a professional person employed under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the ... professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a) (2006). Thus, pursuant to 11 U.S.C. § 330(a)(3), courts should consider six factors to determine whether or not to award attorney fees. Section 330 states, in relevant part: (a)(3) In determining the amount of reasonable compensation to be awarded to" }, { "docid": "15988376", "title": "", "text": "with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis.... Sections 330 and 331 of the Bankruptcy Code and Fed.R.Bankr.P. 2016(a) set forth the procedural requirements for obtaining interim or final compensation for the services rendered by professionals whose employment previously has been approved by the court. Section 330(a) provides for a general award of compensation and states as follows: (1) After notice to the parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, an examiner, a professional person employed under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses. To the extent a professional seeks compensation during the pendency of the bankruptcy case, i.e. “interim” compensation, the professional must further comply with the provisions of Section 331, which states as follows: A trustee, an examiner, a debtor’s attorney, or any professional person employed under section 327 or 1103 of this title may apply to the court not more than once every 120 days after an order for relief in a case under this title, or more often if the court permits, for such compensation for services rendered before the date of such an application or reimbursement for expenses incurred before such date as is provided under section 330 of this title. After notice and a hearing, the court may allow and disburse to such applicant such compensation or reimbursement. See generally David & Hagner, P.C. v. DHP, Inc., 171 B.R. 429, 435 (D.D.C.1994) (stating that “Section 331 permits such compensation [awardable under Section 330] to be paid on an interim basis during the pendency of the bankruptcy case”), aff'd, 70 F.3d 637, 1995 WL" }, { "docid": "18849642", "title": "", "text": "detailed statement of (1) the services rendered, time expended and expenses incurred, and (2) the amounts requested.” Fed.R.Bankr.P. 2016(a). Unfortunately, the only statutory cap setting maximum fees regards bankruptcy trustee fees as provided in section 326. Section 328, however, provides a potential check on the compensation of professionals. Section 328(a) states: The trustee, or a committee appointed under section 1102 of this title, with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. (Emphasis added). 11 U.S.C. § 328(a). Even though private compensation agreements are permissible under the Code, the Court retains the responsibility of ensuring that the compensation awarded to professional persons falls within the parameters prescribed by section 330. See In re Churchfield Management & Invest. Corp., 98 B.R. 893 (Bankr.N.D.Ill.1989). The burden of proof to show entitlement to the fees requested is on the applicant. In re Pettibone Corp., 74 B.R. 293, 299 (Bankr.N.D.Ill.1987); In re Lindberg Products, Inc., 50 B.R. 220, 221 (Bankr.N.D.Ill.1985). Moreover, fee applications must stand or fall on their own merits. See In re Wildman, 72 B.R. 700 (Bankr.N.D.Ill.1987). Even if no objections are raised to a fee application, the Court is not bound to award the fees sought, and in fact has a duty to independently examine the reasonableness of the fees. In re Chicago Lutheran Hospital Association, 89 B.R. 719, 734-735 (Bankr.N.D.Ill.1988); Pettibone, 74 B.R. at 299-300; In re NRG Resources, Inc., 64 B.R. 643, 650 (W.D.La.1986). Several courts have denied or drastically reduced compensation in unsuccessful Chapter 11 cases. See In re King, 96 B.R." }, { "docid": "7084321", "title": "", "text": "re Triangle Chemicals, Inc., 697 F.2d 1280, 1285 (5th Cir.1983); In re Fountain Bay Mining Co., 46 B.R. 122, 124 (Bankr.W.D.Va.1985); In re New England Fish Co., 33 B.R. 413, 419 (Bankr.W.D.Wash.1983). Courts have enumerated several reasons for requiring court approved employment prior to allowing compensation for services rendered. It gives the courts an opportunity to monitor the case and control costs involved in the reorganization process; provides the creditors and other parties in interest an opportunity to be appraised of unusual expenditures, particularly those for attorneys and other professionals’ fees; and to preserve available funds to fund a plan of reorganization. In re Nana Daly’s Pub, Ltd., 67 B.R. 782, 786 (Bankr.E.D.N.Y.1986); In re Yeisley, 64 B.R. 360, 362 (Bankr.S.D.Tex.1986). B. 11 U.S.C. § 330 COMPENSATION OF PROFESSIONAL PERSONS Section 330 of the Bankruptcy Code is the statutory basis for allowing compensation to professional persons. Subsection (a) requires that the person seeking compensation must first be authorized to be employed pursuant to section 327 or 1103. See 11 U.S.C. § 330(a). The Court finds that it lacks statutory authority to allows the compensation requested for the services performed prior to and after the order denying employment. In the absence of a court order approving the Applicant’s employment, there is no statutory basis upon which the Court can make a fee award. Although this result may seem draconian, the Bankruptcy Code and Rules are clear. The Court follows the general rule that professionals must first obtain an order authorizing employment in order for the Court to award fees upon subsequent application, notwithstanding the reasonableness, necessity and benefit to the estate of the services rendered. To the extent other courts have held to the contrary, the Court declines to follow those decisions. See In re Cormier, 35 B.R. 424 (D.Me.1983); In re Eastern Inns of New Hampshire, Inc., 72 B.R. 418 (Bankr.D.Me.1987). C. 11 U.S.C. § 328 LIMITATION ON COMPENSATION The Applicant further argues that the Court has authority to award compen sation pursuant to 11 U.S.C. § 328(c). Section 328(c) provides: Except as provided in section 327(c), 327(e) or 1107(b)" }, { "docid": "15172229", "title": "", "text": "by and disbursed from the Chapter 13 plan. Collins, 210 B.R. at 540. There is a split in authority as to whether a Chapter 7 debtor’s attorney is entitled to receive compensation from a Chapter 7 estate as an administrative expense. The majority of courts that have considered this issue have ruled that the 1994 amendments to the Code have precluded such payment. Prior to the adoption of the 1994 Reform Act, § 330(a)(1) provided: (a) After notice to any parties in interest and to the United States trustee and a hearing ... the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to debtor’s attorney (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney ... based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title[.] 11 U.S.C. § 330(a)(1) (1978) (emphasis supplied). The Bankruptcy Reform Act of 1994 deleted the phrase “debtor’s attorney” from the statute. Section 330(a)(1)(A) now provides: (a)(1) After notice to the parties in interest and the United States trustee and a hearing, and subject to section 326, 328, and 329, the court may award to a trustee, an examiner, a professional person employed under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person[.] 11 U.S.C. § 330(a)(1)(A) (1994). Several courts have concluded that they no longer have any authority to award compensation to a debtor’s attorney as an administrative expense. See United States Trustee v. Garvey, Schubert & Barer (In re Century Cleaning Serv., Inc.), 215 B.R. 18 (9th Cir. BAP 1997); In re Thomas, 195 B.R. 18 (Bankr.W.D.N.Y.1996); In re Fassinger, 191 B.R. 864 (Bankr.D.Or.1996); In re Friedland, 182 B.R. 576 (Bankr.D.Colo.1995); In re Kinnemore, 181 B.R. 520 (Bankr.D.Idaho 1995). They have also relied on the provisions of § 330(a)(4)" }, { "docid": "3086956", "title": "", "text": "which P & L agreed to provide the Debtor with services for “Special Projects.” (Id.) On January 4, 2010, Puritan Finance Corporation (“Puritan”) filed an objection to the Debtor’s motion for payment of an administrative expense claim to P & L. On January 19, 2010, Parkway Bank and Trust Company (“Parkway”) filed an objection to the Debtor’s motion. Puritan and Parkway, the principal secured creditors in the case, maintain that the services provided by P & L to the Debtor go beyond traditional bookkeeping and instead fall within the scope of § 327 professional services. According to Puritan and Parkway, the Debtor’s request for payment to P & L should be denied because P & L was not retained as an estate professional under § 327. III. APPLICABLE STANDARDS A. Requirements for Approval of Professional Services Section 327(a) of the Bankruptcy Code provides that a debtor-in-possession, “with the court’s approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons....” 11 U.S.C. § 327(a). Section 330(a)(1), in turn, provides that “the court may award to ... a professional person employed under section 327 ... (A) reasonable compensation for actual, necessary services rendered by the ... professional person ... and (B) reimbursement for actual, necessary expenses.” 11 U.S.C. § 330(a)(1). The purpose of § 327 is to allow the bankruptcy court to control administrative expenses. In re Madison Mgmt. Group, Inc., 137 B.R. 275, 283 (Bankr.N.D.Ill.1992). Section 327 permits the debtor-in-possession to retain regularly employed professionals on salary if necessary in the operation of the debtor’s business. Id. In order to be paid from the estate, a professional must have been employed with court approval. In re Weinschneider, 395 F.3d 401, 403-04 (7th Cir.2005) (citing Lamie v. United States Trustee, 540 U.S. 526, 538-39, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004)); In re Milwaukee Engraving Co., 219 F.3d 635, 637 (7th Cir.2000); In re Midway Indus. Contractors, Inc., 272 B.R. 651, 662-63 (Bankr.N.D.Ill.2001). Absent such approval there is no right to compensation. Madison Mgmt. Group, 137 B.R. at 284 (citing In re Banhalmi, 84 B.R. 123, 125 (Bankr.N.D.Ill.1988))." }, { "docid": "18796609", "title": "", "text": "Pursuant to Section 327(a) 58. Section 327, through § 1107(a), of the Bankruptcy Code, governs the employment of professionals by the debtor-in-possession and authorizes the employment of professionals who are • disinterested persons • that do not hold or represent an interest materially adverse to the interest of the estate or of any class of creditors. See 11 U.S.C. § 327(a). Failure to satisfy either the adverse interest prong or the not-disinterested prong renders an applicant ineligible for employment under § 327(a). 59. In conjunction with this section, professionals seeking to be employed under § 327(a) are required to file affidavits pursuant to Fed.R.Bankr.P. 2014(a) disclosing all connections with creditors, any other party in interest and their respective attorneys and accountants. Further, § 328(c) of the Bankruptcy Code allows the court to deny compensation to a professional in any case where “such professional person is not a disinterested person, or represents or holds an interest adverse to the interest of the estate,” 11 U.S.C. § 328(c), and § 330 only permits a bankruptcy court to award compensation to a professional employed under § 327. See 11 U.S.C. § 330. In other words, where an attorney for a debtor is found to hold or represent an adverse interest, disallowance of attorney’s fees is appropriate. See In the Matter of Grabill Corp., 983 F.2d 773, 776 (7th Cir.1993) (“The scattered cases ... that allow a lawyer to be compensated who, lacking the requisite disinterestedness could not have been appointed, seem to us just plain wrong.”) 60. Courts aptly construe § 327(a) as being concerned with a professional’s divided loyalties and ensuring that professionals employed by the estate have no conflicts of interests with the estate. Id. at 1013. The indisputable essence of § 327(a) and Fed.R.Bankr.P. 2014(a) is that an attorney for the debtor-in-possession can and must act with impartiality. The purpose of the two statutory requirements is to avoid even the appearance of a conflict, regardless of the integrity of the professional seeking to be employed. In re Grabill Corp., 113 B.R. 966, 969 (Bankr.N.D.Ill.1990), aff'd 983 F.2d 773 (7th Cir.1993)" }, { "docid": "12594809", "title": "", "text": "and expenses are at issue in this case. Before the court is the firm’s first application for Chapter 7 attorney fees and expenses, in which it seeks payment of the fees from the retainer. ISSUE Does the 1994 amendment to 11 U.S.C. § 330, which deleted Chapter 7 debtors’ counsel from the list of entities authorized to receive an award of compensation from the estate, preclude an attorney for a Chapter 7 debtor from being paid for postpetition services and expenses from a prepetition retainer? DISCUSSION 1. Can a Chapter 7 debtor’s attorney be awarded compensation under 11 U.S.C. § SSO? Bankruptcy Code section 330 authorizes an award of compensation from property of the estate for an attorney’s services and reimbursement for expenses. Subsection (a) provides, as relevant: (a)(1) After notice to the parties in interest and the United States trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, an examiner, a professional person employed under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses. Section 330 does not authorize an award of a Chapter 7 debtor’s postpetition attorney fees from property of the estate. In re Fassinger, 191 B.R. 864 (Bankr.D.Or.1996). Because a prepetition retainer is an asset of the ' Chapter 7 estate, see In re Friedland, 182 B.R. 576 (Bankr.D.Colo.1995), the UST argues that a Chapter 7 debtor’s attorney cannot be paid from that retainer. The firm argues first that the holding in Fassinger is inconsistent with the legislative intent and that I should reconsider whether section 330 applies to Chapter 7 debtors’ postpetition attorney fees. In Fassinger, the court considered the 1994 amendments to section 330, which deleted the Chapter 7 debtor’s attorney from the list of professionals authorized to receive compensation from the estate. The court noted that it “may only award fees to the debtor’s attorney to the extent it is authorized to do so by" }, { "docid": "5521902", "title": "", "text": "de novo but the bankruptcy court’s findings of fact may not be set aside unless clearly erroneous. Bankruptcy Rule 8013; Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987); In re Martin, 761 F.2d 472, 474 (8th Cir.1985). DISCUSSION The following provisions of the Bankruptcy Code are relevant to the issue presented in this appeal. Section 327(a) of the Bankruptcy Code states in part: ..., the trustee, with the court’s approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons,.... 11 U.S.C. § 327(a). Section 330(a) states in part: After notice to any parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328, and 329 of this title, the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor’s attorney— (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be, ..., based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a) (emphasis added). Section 331 states: A trustee, an examiner, a debtor’s attorney, or any professional person employed under section 327 or 1103 of this title may apply to the court not more than once every 120 days after an order for relief in a case under this title, or more often if the court permits, for such compensation for services rendered before the date of such an application or reimbursement for expenses incurred before such date as is provided under section 330 of this title. After notice and a hearing, the court may allow and disburse to such applicant such compensation or reimbursement. 11 U.S.C. § 331 (emphasis added). Finally, section 328(a) states in part: The trustee, or a committee appointed under section 1102 of this title, with the court’s approval, may employ or authorize the employment" }, { "docid": "22880545", "title": "", "text": "§ 330(a) does not permit the award of fees to Chapter 7 or Chapter 11 debtor’s attorneys. Thus, he argues, the bankruptcy court was not authorized to award fees to either E & H or JPL who served in that capacity. Even if section 330(a) does allow such an award of fees, Smith argues that the fee awards cannot be supported under the benefit analysis approach employed in Pfeiffer v. Couch (In re Xebec), 147 B.R. 518 (9th Cir.BAP 1992). We address these contentions in turn. Section 330(a) of the Bankruptcy-Code governs the compensation of officers and professionals working on a bankruptcy case. Prior to 1994, section 330(a) provided that: After notice to any parties in interest and to the United States trustee and a hearing, ... the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title [which authorizes the trustee or creditors’ committee to employ attorneys and other professionals], or to the debtor’s attorney— (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be, and by any paraprofessional persons employed by such trustee, professional person, or attorney, as the case may be, based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a) (1988) (emphasis added). Subsequently, Congress passed the Bankruptcy Reform Act of 1994(Reform Act). The Reform Act renumbered various provisions and substituted the following relevant provisions in section 330: (a)(1) After notice to the parties in interest and the United States trustee and a hearing, ... the court may award to a trustee, an examiner, a professional person under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses. (a)(3)(A) In determining the amount" }, { "docid": "5521903", "title": "", "text": "extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a) (emphasis added). Section 331 states: A trustee, an examiner, a debtor’s attorney, or any professional person employed under section 327 or 1103 of this title may apply to the court not more than once every 120 days after an order for relief in a case under this title, or more often if the court permits, for such compensation for services rendered before the date of such an application or reimbursement for expenses incurred before such date as is provided under section 330 of this title. After notice and a hearing, the court may allow and disburse to such applicant such compensation or reimbursement. 11 U.S.C. § 331 (emphasis added). Finally, section 328(a) states in part: The trustee, or a committee appointed under section 1102 of this title, with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. As these Code provisions indicate, generally, professionals whose services are retained pursuant to § 327 must file an application for compensation, which is subject to a noticed hearing, prior to allowance and payment of fees. See 11 U.S.C. §§ 330 and 331; In re Knudsen Corp., 84 B.R. 668, 672 (9th Cir. BAP 1988). However, the debtor’s counsel argues, and several courts have held that fee payments and application procedures whereby professionals may be paid each month without prior court approval of billing statements are permissible pursuant to § 328 of the Code which authorizes the employment of professionals on any reasonable terms and conditions, including retainers. See e.g. In re Knudsen Corp., 84 B.R. 668 (9th Cir. BAP 1988). In this case, the bankruptcy court found that the procedure for payment at issue is similar" }, { "docid": "5140681", "title": "", "text": "provided in section 327(c), or 1107(b) of this title, the court may deny allowance of compensation for services and reimbursement of expenses of a professional person employed under section 327 or 1103 of this title if, at any time during such professional person’s employment under section 327 or 1103 of this title, such professional person is not a disinterested person, or represents or holds an interest adverse to the interest of the estate with respect to the matter on which such professional person is employed. The court in In re 765 Associates, 14 B.R. 449 (Bkrtcy.D.Hawaii 1981) held that an attorney must reimburse the estate for fees already received when a conflict of interest existed. Based upon the many factors in this case which prove that the firm had a conflict of interest and was an interested party, the Niesar firm’s application for interim compensation is denied. The firm is also ordered to refund the prior retainer paid of $16,463.21 to the debtor. This Memorandum Opinion and Decision shall constitute findings of fact and conclusions of law. Counsel for the Creditors Committee are requested to prepare and submit an order consistent with this opinion. . 11 U.S.C. Section 1107(a) states, (a) Subject to any limitations on a trustee under this chapter, and to such limitations or conditions as the court prescribes, a debtor in possession shall have all the rights, other than the right to compensation under section 330 of this title, and powers, and shall perform ail the functions and duties, except the duties specified in sections 1106(a)(2), (3), and (4) of this title, of a trustee serving in a case under this chapter. . Interim Bankruptcy Rule 2006 provided, An order approving the employment of attorneys, accountants, appraisers, auctioneers, agents or other professional persons pursuant to Section 327 or Section 1103 of the Bankruptcy Code shall be made only on application of the trustee or committee, stating the specific facts showing the necessity for such employment, the name of the person to be employed, the reasons for his selection, the professional services to be rendered, and to the" }, { "docid": "15988375", "title": "", "text": "a motion seeking an award of sanctions against BETO. The Professionals also filed a reply to the United States Trustee’s comments. On May 21, 1996, I made myself available for the hearing BETO had requested. BETO was not prepared, however, to present evidence; therefore, I entertained oral argument on the motion for reconsideration. Discussion A. Relevant statutory authority Section 327(a) of the Bankruptcy Code provides for the employment on approval of the bankruptcy court of professional persons by a trustee/debtor-in-possession, including the employment attorneys and accountants. Pursuant to Fed.R.Bankr.P. 2014, an application requesting approval of the employment must be filed and transmitted to the United States Trustee. With respect to the mere employment of a professional person (as distinguished from the provision of compensation or disbursements thereto), there is no requirement for notice to creditors and parties in interest other than the United States Trustee. Section 328(a) of the Bankruptcy Code relates to the terms of representation by professionals and states in part: The trustee, or a committee appointed under section 1102 of this title, with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis.... Sections 330 and 331 of the Bankruptcy Code and Fed.R.Bankr.P. 2016(a) set forth the procedural requirements for obtaining interim or final compensation for the services rendered by professionals whose employment previously has been approved by the court. Section 330(a) provides for a general award of compensation and states as follows: (1) After notice to the parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, an examiner, a professional person employed under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses." }, { "docid": "18499128", "title": "", "text": "persons (a) ... [T]he trustee, with the court’s approval, may employ one or more ... professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee’s duties under this title. 11 U.S.C. § 330 provides: Compensation of officers (a) ... [T]he court may award to ... a professional person employed under section 327.... (1) reasonable compensation for actual, necessary services rendered ... based on the nature, the extent, and the value of such services, the time spent on such services and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. . Rule 2014 provides: Employment of Professional Persons (a) Application for an order of employment An order approving the employment of ... professionals pursuant to § 327 ... shall be made only on application of the trustee ... stating the specific facts showing the necessity for the employment, the name of the person to be employed, the reasons for the selection, the professional services to be rendered, any proposed arrangement for compensation, and, to the best of the applicant’s knowledge, all of the person’s connections with the debt- or, creditors, or any other party in interest. ... . We have found a handful of bankruptcy cases that seem to use \"court approval” under § 327 synonymously with \"court appointment.\" See, e.g., In re Northeast Dairy Co-op. Federation, Inc., 74 B.R. 149, 152 (Bankr.N.D.N.Y.1987); In the Matter of Ross, 88 B.R. 471, 475 (Bankr.M.D.Ga.1988); In re Amherst Mister Anthony's Ltd., 63 B.R. 292, 293 (Bankr.W.D.N.Y.1986). None of these cases involves the specific issue of whether expert witness fees may be assessed against a losing party in an adversary proceeding; rather they involve compensation of court \"appointed” professionals from the bankruptcy estate under 11 U.S.C. § 330. The use of the term \"appointment” in these cases was imprecise and they hardly constitute persuasive precedent in the cost-assessment context." }, { "docid": "8686931", "title": "", "text": "those services that were performed after January 22, 2002. B. Employment under § 327 At the hearing on the Applications, however, all of the Creditors requested the nunc pro tunc approval of their employment by the estate. Generally, professional persons who are employed by the trustee pursuant to § 327 of the Bankruptcy Code may be awarded reasonable compensation for their services pursuant to § 330 of the Bankruptcy Code. Section 327(a) provides: 11 U.S.C. § 327. Employment of professional persons (a) Except as otherwise provided in this section, the trustee, with the court’s approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee’s duties under this title. 11 U.S.C. § 327(a)(Emphasis supplied). Section 330(a)(1) provides: 11 U.S.C. § 330. Compensation of officers (a)(1) After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, an examiner, a professional person employed under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a)(Emphasis supplied). The combined effect of these statutes is to authorize an award of compensation to professionals who have been employed by the trustee, and whose employment has been approved by the Court. As a general rule, however, professional persons are not entitled to any compensation for postpetition services if they did not obtain prior approval of their employment from the Court. In re Keller Financial Services of Florida, Inc., 248 B.R. 859 (Bankr.M.D.Fla.2000)(quoting In re Monument Auto Detail, Inc., 226 B.R. 219 (9th Cir. BAP 1998) and In re W.T. Mayfield Sons Trucking Co., Inc., 225 B.R. 818 (Bankr.N.D.Ga.1998)). See also In re Stoico Restaurant Group, Inc., 271 B.R. 655 (Bankr.D.Kan.2002). C. Retroactive approval In this" }, { "docid": "8853754", "title": "", "text": "which provides as follows: § 330. Compensation of officers. (a) After notice to any parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328, and 329 of this title, the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor’s attorney— (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be, and by any paraprofessional persons employed by such trustee, professional person or attorney, as the case may be, based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a)(1) and (2). Pursuant to Section 330 of the Bankruptcy Code, all professionals applying for fees must demonstrate that their services were actual, necessary and reasonable. The legislative history of section 330 expressly notes the Court’s correlative duty to closely examine the reasonableness and necessity of the fees incurred. Bankruptcy Rule 2016(a) in turn requires that “[a]n entity seeking interim or final compensation for services, or reimbursement of necessary expenses, from the estate shall file with the court an application setting forth a detailed statement of (1) the services rendered, time expended and expenses incurred, and (2) the amounts requested.” Fed.R.Bankr.P. 2016(a). The burden of proof to show entitlement to the fees requested is on W & S. In re Pettibone Corp., 74 B.R. 293, 299 (Bankr.N.D.Ill.1987); In re Lindberg Products, Inc., 50 B.R. 220, 221 (Bankr.N.D.Ill.1985). Moreover, fee applications must stand or fall on their own merits. See In re Wildman, 72 B.R. 700 (Bankr.N.D.Ill.1987). Even if no objections are raised to a fee application, the Court is not bound to award the fees sought, and in fact, has a duty to independently examine the reasonableness of the fees. In re Chicago Lutheran Hospital Ass’n, 89 B.R. 719, 734-735 (Bankr.N.D.Ill.1988); In re Wyslak," } ]

[ { "docid": "13617648", "title": "", "text": "U.S. at 275, 98 S.Ct. at 1800; In re Ribs-R-Us, 828 F.2d 199, 200-01 (3d Cir.1987). The IRS need not attempt to collect the withholding taxes from the employer before seeking to collect from the responsible person. Ribs-R-Us, 828 F.2d at 201; United States v. Pomponio, 635 F.2d 293, 298 (4th Cir.1980). However, under long-standing IRS policy, the government will retain only one satisfaction of the unpaid trust fund taxes, whether collected in part from each responsible person and the corporate employer, or entirely from one source. See Policy Statement P-5-60 (approved May 30, 1984), reprinted in Policies of the Internal Revenue Service Handbook, 1 CCH Administration, Internal Revenue Manual at 1305-14; see also Sotelo, 436 U.S. at 279-80 n. 12, 98 S.Ct. at 1802 n. 12. Thus, each responsible person will be relieved of separate liability to the extent that the corporation pays its trust fund taxes. Under another long-standing IRS policy, taxpayers may designate the application of tax payments that are voluntarily made, but may not designate the application of involuntary payments. Rev.Rul. 79-284, 1979-2 C.B. 83; Rev.Rul. 73-304, 1973-2 C.B. 42; Ribs-R-Us, 828 F.2d at 201. This policy stems from the common law rule generally recognized between creditors and debtors that the debtor may indicate which debt it intends to pay when it voluntarily submits a payment to a creditor, but may not dictate the application of funds that the creditor involuntarily collects from it. See O’Dell v. United States, 326 F.2d 451, 456 (10th Cir.1964); In re R.L. Inge Dev. Corp., 78 B.R. 793, 794 (Bankr.E.D.Va.1987). An involuntary payment traditionally has been defined as “any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor.”' Amos v. Commissioner, 47 T.C. 65, 69 (1966) (emphasis added). Most courts that have considered the issue have concluded that payments made in the bankruptcy context are involuntary. See In re Frank Meador Buick, Inc., 946 F.2d 885 (Table), 1991 WL 209824, at *3, 1991" } ]

[ { "docid": "4027417", "title": "", "text": "this undermines the purpose of Section 6672. Federal courts have struggled with the voluntary/involuntary distinction in the bankruptcy context and have come to different conclusions. We conclude that payments made by a debtor in possession after filing a petition for reorganization under Chapter 11, but prior to confirmation of a reorganization plan, are involuntary and the bankruptcy court does not have equitable jurisdiction to order otherwise. In Amos v. Commissioner of Internal Revenue, 47 T.C. 65, 69 (1966), the tax court defined involuntary payment: An involuntary payment of Federal taxes means any payment received by agents of the United States as a result of dis-traint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor. The Seventh Circuit in Muntwyler observed that Amos and the cases decided after it “uniformly define an involuntary payment as one made pursuant to judicial action or some form of administrative seizure, like a levy.” 703 F.2d at 1033. In Muntwyler, the court held that payments to the IRS made by the trustee of an assignment for the benefit of creditors were voluntary because the only IRS action was the filing of a claim with the trustee, and therefore payments could be directed by the debtor to its trust fund liabilities. The court distinguished the assignment for the benefit of creditors from payments made in bankruptcy, because “court action is involved” in the latter. Id. The court stated that “[t]he Government might have been correct in its claim if the corporation had been in bankruptcy, which it was not.” Id. at 1034 n. 2. The Third Circuit followed the reasoning of Muntwyler in In re Ribs-R-Us. There, the court held that “payments on prepetition federal tax liabilities by a debtor pursuant to a plan of reorganization under Chapter 11 are involuntary [and therefore] the debtor cannot direct the allocation of such payments between the trust fund and non-trust fund portions of the debtor’s tax liabilities.” 828 F.2d at 199. In so doing, the Third Circuit relied on the opinion of the dissenting" }, { "docid": "12383550", "title": "", "text": "See also United States v. Sotelo, 436 U.S. at 275, 98 S.Ct. at 1800. The IRS need not attempt to collect from the employer before assessing a responsible person under section 6672. Datlof v. United States, 370 F.2d 655, 656 (3d Cir.1966). Moreover, personal liability under section 6672 is not dischargeable and survives the bankruptcy of the responsible persons. 11 U.S.C. § 523(a)(1)(A); see also United States v. Sotelo, 436 U.S. at 277, 98 S.Ct. at 1801. It is the government’s position that the plan provision directing the application of tax payments initially to the trust fund portion of Ribs-R-Us’ tax liability was intended to shield from potential personal liability principals of Ribs-R-Us, including Mekles and Levy, who continued as the sole shareholders of the reorganized corporation, and that because this is in derogation of the purpose of section 6672 it is impermissible. III. VALIDITY OF DESIGNATION PROVISION It has consistently been the policy of the IRS that where a taxpayer submits a voluntary payment, the taxpayer may designate the tax liability to which the payment will be applied. See Rev.Rul. 79-284, 1979-2 C.B. 83, modifying Rev.Rul. 73-305, 1973-2 C.B. 43, superseding Rev.Rul. 58-239, 1958-1 C.B. 94. On the other hand, where the payment is not voluntary, it is the policy of the IRS to apply the payment first to non-trust fund taxes due. IRS Policy Statement P-5-60, IRS Manual (May 30, 1984); see also Slodov v. United States, 436 U.S. at 252 n. 15, 98 S.Ct. at 1788, n. 15. Because the personal liability of the responsible person offers an additional source of collection of trust fund taxes, this allocation increases the United States’ opportunity to recover taxes due it in full. Ribs-R-Us does not challenge the proposition that its entitlement to designate application of payments depends on whether we view the payments as voluntary. See, e.g., In re Avildsen Tools & Machine, Inc., 794 F.2d 1248, 1251-52 (7th Cir.1986); O’Dell v. United States, 326 F.2d 451, 456 (10th Cir.1964); Amos v. Commissioner, 47 T.C. 65, 69-70 (1966). This dispute between the parties is limited to whether a payment" }, { "docid": "18515553", "title": "", "text": "payments, and it “ordered” the IRS “to apply tax payments under the Plan as designated by the Trustee.” The IRS appealed this order to the District Court, which affirmed the bankruptcy court. The IRS now appeals that decision. II. The Law In our view, these cases require us to answer two legal questions. The first legal question concerns the scope of IRS policy. It is whether a payment made pursuant to a Chapter 11 reorganization plan is “voluntary” or “involuntary,” as IRS rules and regulations use these terms. Our answer to that question is similar to that of the Third Circuit. We believe that the law permits the IRS to call tax payments within a Chapter 11 reorganization “involuntary,” for purposes of applying its own regulations. We reach a result that differs from the Third Circuit, however, because we believe we must ask a second question: Does the law permit a bankruptcy court to order the IRS to allocate an “involuntarily” made payment to a debtor’s “trust fund” tax liability first? We conclude that the law does authorize a bankruptcy court to order the IRS to allocate such “involuntary” payments to a taxpayer’s “trust fund” liability first, provided that the court reasonably concludes that this allocation will likely increase the reorganization plan’s chances for success. We shall analyze each of these two legal questions in turn. A. The “IBS Rule” Question: “Voluntary” or “Involuntary”? IRS policy has long permitted a taxpayer who “voluntarily” submits a payment to the IRS to designate the tax liability {i.e., “trust fund” or non-trust fund tax debts) to which the payment will apply. See Rev.Rul. 79-284,1979-2 C.B. 83, modifying Rev.Rul. 73-305, 1973-2 C.B. 43, superseding Rev.Rul. 58-239, 1958-1 C.B. 94 (“partial payments of ... tax[es] are to be applied as the taxpayer designates ... where the taxpayer provides specific written instruction for the application of a voluntary partial payment”); Slodov, 436 U.S. at 252 n. 15, 98 S.Ct. at 1788 n. 15. In re Technical Knockout Graphics, Inc., 833 F.2d at 801; In re Ribs-R-Us, Inc., 828 F.2d at 201; In re A & B" }, { "docid": "18515555", "title": "", "text": "Heating & Air Conditioning, 823 F.2d at 463; Muntwyler v. United States, 703 F.2d 1030, 1032 (7th Cir.1983); O’Dell v. United States, 326 F.2d 451, 456 (10th Cir.1964); see also Wood v. United States, 808 F.2d 411, 416 (5th Cir.1987). However, where the taxpayer “involuntarily” makes the payment, the IRS has granted the taxpayer no such freedom to designate the allocation; the IRS will decide how to apply the payment; and it will almost always decide to apply the payment to a non-trust fund tax debt first. See IRS Policy Statement P-5-60, reprinted in 1 Administration, Internal Revenue Manual (CCH) 1305-15; Slodov, 436 U.S. at 252 n. 15, 98 S.Ct. at 1788 n. 15; In re Technical Knockout Graphics, Inc., 833 F.2d at 801; In re Ribs-R-Us, Inc., 828 F.2d at 201; In re A & B Heating & Air Conditioning, 823 F.2d at 463; Muntwyler, 703 F.2d at 1032. These payment designation rules, says the IRS, are consistent with “the common law” policy, generally recognized between creditors and debtors, that the debtor may indicate which debt he intends to pay when he voluntarily submits a payment to his creditor, but may not dictate the application of funds that the creditor collects from him. In re Energy Resources Co., Inc., Brief for Appellants [IRS], at 18 n. 11. See O’Dell v. United States, 326 F.2d 451, 456 (10th Cir.1964); see also Hewitt v. United States, 377 F.2d 921, 925 (5th Cir.1967). The IRS adds that the Tax Court defined the “voluntary”/“involuntary” distinction authoritatively in Amos v. Commissioner, 47 T.C. 65 (1966), where it said, [a]n involuntary payment of Federal taxes means any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor. Amos, 47 T.C. at 69. But see also Muntwyler, 703 F.2d at 1033 (“The distinction between a voluntary and involuntary payment in Amos and all the other cases is not made on the basis of the presence of administrative action alone, but" }, { "docid": "15048552", "title": "", "text": "of voluntariness and timeliness. National Bank of the Commonwealth of New York City v. Mechanics’ National Bank of Trenton, New Jersey, 94 U.S. (4 Otto) 437, 439, 24 L.Ed. 176, 178 (1877) (citations omitted). When a taxpayer makes a “voluntary” payment to the IRS, then the taxpayer may designate, at the time of tender, the manner of. allocation of such payment among its tax, penalties, and interest liabilities. Muntwyler v. United States, 703 F.2d 1030, 1032 (7th Cir.1983). See O’Dell v. United States, 326 F.2d 451, 456 (10th Cir.1964) (adopted the minority view as to involuntary payments, where some jurisdictions give the creditor the right to direct the application of involuntary as well as a voluntary payments). , If the taxpayer fails to make a timely designation, and in the absence of intervening variables discussed infra, then the payment is considered “involuntary” and the IRS may designate the collected payment according to it’s policy of maximizing the amount of assessed tax. United States v. DeBeradinis, 395 F.Supp. 944, 952 (D.Conn.1975), aff'd without opinion, 538 F.2d 315 (2d Cir.1976). In Amos v. Commissioner, 47 T.C. 65 (1966), the Tax Court provided one frequently cited definition of “involuntary” in the voluntary-involuntary dichotomy: “An involuntary payment of Federal taxes means any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefore.” Id., 47 T.C. at 69. (emphasis ours). In Amos, supra, the Tax Court expressly cited O’Dell, supra, 326 F.2d at 456, as the minority view, (permits a creditor to direct the application of involuntary as well as voluntary payments as “involuntary”), and applied O’Dell to hold that the IRS’s district director could apply monies received from the taxpayer in a non-judicial setting, as the result of an IRS’s levy upon the taxpayer’s bank and insurance company, according to it’s policy since those payments were “involuntary.” We reject the IRS’s position that a mere unilateral prepetition administrative action, such as mailing a notice of levy, or the" }, { "docid": "16850997", "title": "", "text": "that appellant had the use of the Government’s money during the period of the reorgani zation proceeding, and that since the underlying debt is not discharged by operation of Section 17 of the Bankruptcy Act, 11 U.S.C. § 35 (1964), neither is the interest which accrues by reason of the use of such money during the pendency of the proceedings.”)); Johnson Electrical, 442 F.2d at 284 (stating that the distinction between post-petition interest where the underlying tax is partially paid and where it is fully paid \"is not sufficiently substantial to warrant a different result. Either the filing of the petition stops the running of interest on federal tax claims against a bankrupt or it does not.”). . Heisson, 217 B.R. at 4. . Regarding the application of the payments, we note in passing that \"[u]nder [a] long-standing IRS policy, taxpayers may designate the application of tax payments that are voluntarily made, but may not designate the application of involuntary payments.\" United States v. Pepper-man, 976 F.2d 123, 127 (3d Cir.1992) (citing Rev.Rul. 79-284, 1979-2 C.B. 83; Rev.Rul 73-304, 1973-2 C.B. 42; Matter of Ribs-R-Us, 828 F.2d 199, 201 (3d Cir.1987)). \"An involuntary payment traditionally has been defined as 'any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor.’ \" Id. (citing Amos v. Commissioner, 47 T.C. 65, 69, 1966 WL 1102 (1966) (emphasis in Pep-perman)). \"Most courts ... have concluded that payments made in the bankruptcy context are involuntary.\" Id. (citations omitted). The Third Circuit “conclude(d) ... that payments made to the IRS out of a Chapter 7 debtor’s estate are involuntary.” Id. In so determining, the court took into consideration the fact that \"the trustee was not free to withhold payment for taxes.” Id." }, { "docid": "8310165", "title": "", "text": "memorandum opinion, the court stated that the priority payments to be made by the debtors pursuant to the confirmed Chapter 13 plan, were involuntary payments, and therefore the IRS could elect to apply those payments in any manner it chose to maximize the collection of tax revenue from the estate, 76 B.R. 795 (Bank.Or.1987). The debtors appeal from this opinion. ISSUES 1. Whether a debtor may apply the post-confirmation payments on priority tax claims to extinguish a federal tax lien in a Chapter 13 case, when the tax lien is not provided for in the plan of reorganization. 2. Whether a federal tax lien survives bankruptcy unaffected if it is neither avoided nor provided for in the plan. STANDARD OF REVIEW We review the bankruptcy court’s conclusions of law under a de novo standard. Ragsdale v. Haller, 780 F.2d 794, 795 (9th Cir.1986). DISCUSSION A taxpayer who makes a voluntary payment to the IRS may designate how the payment will be allocated to satisfy the taxpayers’ liabilities. In re Technical Knockout Graphics, Inc., 833 F.2d 797, 801 (9th Cir.1987); In re Ribs-R-Us, Inc., 828 F.2d 199, 201 (3rd Cir.1987). See also Rev.Rul. 79-284, 1979-2 C.B. 83, modifying Rev.Rul. 73-305, 1973-2 C.B. 43, su-perceding Rev.Rul. 58-239, 1958-1 C.B. 94. However, when the payment is involuntary, the IRS may designate which of the taxpayers’ liabilities will be satisfied by the payment. Slodov v. United States, 436 U.S. 238, 252, n. 15, 98 S.Ct. 1778, 1788, n. 15, 56 L.Ed.2d 251 (1978); Technical Knockout, 833 F.2d at 801; Ribs-R-Us, 828 F.2d at 463. See also IRS Policy Statement P-5-60, IRS Manual (May 30, 1984). “The IRS is entitled to allocate tax payments from [a] ... debtor in a manner that maximizes its ability to fully recover taxes owed.” Ribs-R-Us, 828 F.2d at 204. The IRS relies heavily on Technical Knockout, 833 F.2d 797 (9th Cir.1987). In Technical Knockout, the Chapter 11 debt- or defaulted on payment of corporate income, social security and income withholding taxes. Prior to confirmation of the plan, the debtor sought to make payments on the IRS’s claims in order" }, { "docid": "17128995", "title": "", "text": "court of the United States to stay a state court action. Id. at 6274. . In re Monroe Well Service, Inc., 67 B.R. 746, 750-51 (Bankr.E.D.Pa.1986); In re Otero Mills, 25 B.R. 1018, 1021-1022 (D.N.M.1982); A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1002 (4th Cir.), cert. den., 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986). See also, National Labor Relations Board v. Superior Forwarding, Inc., 762 F.2d 695, 698 (8th Cir.1985) (Bankruptcy court is empowered under section 105 to enjoin federal regulatory proceedings when those proceedings would threaten the assets of the debtor’s estate). . In re Energy Resources Co., Inc., 871 F.2d 223 (1st Cir.1989). . IRS policy allows taxpayers who \"voluntarily” pay their tax liability to designate the manner in which the tax payments will be applied. Energy Resources, 495 U.S. at 548, 110 S.Ct. at 2141 (citations omitted). Traditionally, a tax payment has been considered \"involuntary\" when it is made to \"agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor.” United States v. Pepperman, 976 F.2d 123, 127 (3d Cir.1992) (citing Amos v. Commissioner, 47 T.C. 65, 69, 1966 WL 1102 (1966)). . Although KBS and some of its creditors were being reorganized under the Kaplans’ bankruptcies, the IRS was not listed as a creditor of KBS in the schedule of defendants in the section 105 stay litigation. Moreover, the Kaplans’ reorganization plan provided that the tax claims against KBS would be paid in accordance with the installment agreements with, the IRS. We note, however, that these installment agreements were voluntary agreements which KBS could, and eventually did, default on. The , fact that the Kaplans never sought the bankruptcy court’s intervention with regard to the IRS’s tax claims against KBS and, indeed, specifically provided in their plan that the normal rule pertaining to payment of allowed tax claims (i.e., allowed tax claims must be paid in full within fifteen days after the effective date of the plan or, pursuant" }, { "docid": "12383551", "title": "", "text": "payment will be applied. See Rev.Rul. 79-284, 1979-2 C.B. 83, modifying Rev.Rul. 73-305, 1973-2 C.B. 43, superseding Rev.Rul. 58-239, 1958-1 C.B. 94. On the other hand, where the payment is not voluntary, it is the policy of the IRS to apply the payment first to non-trust fund taxes due. IRS Policy Statement P-5-60, IRS Manual (May 30, 1984); see also Slodov v. United States, 436 U.S. at 252 n. 15, 98 S.Ct. at 1788, n. 15. Because the personal liability of the responsible person offers an additional source of collection of trust fund taxes, this allocation increases the United States’ opportunity to recover taxes due it in full. Ribs-R-Us does not challenge the proposition that its entitlement to designate application of payments depends on whether we view the payments as voluntary. See, e.g., In re Avildsen Tools & Machine, Inc., 794 F.2d 1248, 1251-52 (7th Cir.1986); O’Dell v. United States, 326 F.2d 451, 456 (10th Cir.1964); Amos v. Commissioner, 47 T.C. 65, 69-70 (1966). This dispute between the parties is limited to whether a payment of taxes pursuant to a Chapter 11 reorganization is “voluntary”. The district courts and bankruptcy courts have divided on this issue. In Amos v. Commissioner, 47 T.C. 65, 69 (1966), the Tax Court defined involuntary payment as follows: An involuntary payment of Federal taxes means any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor.; (emphasis added). Using this definition, the Seventh Circuit in Muntwyler v. United States, 703 F.2d 1030 (7th Cir.1983), held that payments to the IRS made by the trustee of an assignment for the benefit of creditors were voluntary because the only action by the IRS was the filing of a claim with the trustee and that therefore payments could be directed by the debtor to its trust fund liabilities. In reaching its conclusion, the court distinguished the assignment for the benefit of creditors from payments made in bankruptcy, viewing the latter situation as" }, { "docid": "12104588", "title": "", "text": "(7th Cir.1983). When the payment is considered “involuntary,” however, the IRS makes the allocation, applying the money first to non-trust fund taxes. Because the personal liability of the responsible persons provides an additional source for collection of trust fund taxes, this approach allows the government to maximize its total recovery. See Technical Knockout Graphics, Inc., 833 F.2d at 799. In Amos v. Comm’r, 47 T.C. 65, 69 (1966), the Tax Court gave the following definition of “involuntary payment:” “An involuntary payment' of Federal taxes means any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor.” In Muntwyler, a non-bankruptcy case, the Court of Appeals for the Seventh Circuit held that payments made under an assignment for the benefit of creditors were “voluntary” because there had been no court action or administrative action resulting in an actual seizure of property or money. See 703 F.2d at 1033. The Muntwyler court distinguished the assignment for the benefit of creditors from payments made in bankruptcy. Id. at 1034 n. 2. In Technical Knockout Graphics, a bankruptcy case, the Court of Appeals for the Ninth Circuit held that payments made by a debtor in possession after filing a Chapter 11 petition but prior to confirmation of a reorganization plan are involuntary payments. See 833 F.2d at 802. The Court of Appeals for the Third Circuit has held, similarly, that “payments on pre-petition federal tax liabilities by a debtor pursuant to a plan of reorganization under Chapter 11 are involuntary under the federal tax law [and therefore] the debtor cannot direct the allocation of such payments between the trust fund and non-trust fund portions of the debtor’s tax liabilities.” In the Matter of Ribs-R-Us, Inc., 828 F.2d 199, 199 (3d Cir.1987). The Court of Appeals for the Eleventh Circuit, on the other hand, has held that a bankruptcy court has discretion to decide on a case-by-case basis whether a debtor may allocate tax payments in a Chapter 11" }, { "docid": "18772586", "title": "", "text": "United States, 703 F.2d 1030, 1032 (7th Cir.1983); O’Dell v. United States, 326 F.2d 451, 456 (10th Cir.1964). When payments are involuntary, the policy of the IRS is to allocate the payments as it sees fit. Policy Statement P-5-60, reprinted in Internal Revenue Manual (CCH) 1305-15. This rule has been uniformly followed by the courts, see, e.g., United States v. De Beradinis, 395 F.Supp. 944, 952 (D.Conn.1975), aff'd mem.., 538 F.2d 315 (2d Cir.1976), and the Seventh Circuit has accepted it as sensible tax policy. Muntwyler, 703 F.2d at 1032. One of the earliest and most frequently cited definitions of involuntary payments is that of the Tax Court in Amos v. Commissioner, 47 T.C. 65, 69 (1966): “An involuntary payment of Federal taxes means any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor.” The Seventh Circuit has noted that Amos and the cases decided after it uniformly define an involuntary payment as one made pursuant to judicial action or some form of administrative seizure, like a levy. A recent case on the subject is Arnone v. United States, 79-1 U.S.Tax Cas. (CCH) ¶ 9356 (N.D.Ohio 1979). There, the court held that the payment was involuntary because it was pursuant to a levy on a bank account: “[T]he plaintiff had no right to direct the application of funds obtained through enforced collection by administrative seizure.” Id. at 86,846. Similarly, the court in United States v. De Beradinis, 395 F.Supp. 944 (D.Conn.1975), aff'd mem., 538 F.2d 315 (2d Cir.1976), held that payments were involuntary where “they resulted from Internal Revenue levies or participation in litigation.” Id. at 952. Muntwyler, 703 F.2d at 1033. Several cases have held that payments made by a taxpayer involved in a bankruptcy proceeding are involuntary. For example, in O’Dell v. United States, 326 F.2d 451, 456 (10th Cir.1964), the court said that a debtor could not direct application of his money to such debts as he chose where the" }, { "docid": "18515556", "title": "", "text": "which debt he intends to pay when he voluntarily submits a payment to his creditor, but may not dictate the application of funds that the creditor collects from him. In re Energy Resources Co., Inc., Brief for Appellants [IRS], at 18 n. 11. See O’Dell v. United States, 326 F.2d 451, 456 (10th Cir.1964); see also Hewitt v. United States, 377 F.2d 921, 925 (5th Cir.1967). The IRS adds that the Tax Court defined the “voluntary”/“involuntary” distinction authoritatively in Amos v. Commissioner, 47 T.C. 65 (1966), where it said, [a]n involuntary payment of Federal taxes means any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor. Amos, 47 T.C. at 69. But see also Muntwyler, 703 F.2d at 1033 (“The distinction between a voluntary and involuntary payment in Amos and all the other cases is not made on the basis of the presence of administrative action alone, but rather the presence of court action or administrative action resulting in an actual seizure of property or money, as in a levy.”) (emphasis in the original). The IRS argues that payments made by compromise pursuant to a Chapter 11 reorganization plan fall within the (rearranged) literal words of Amos (“payment received as a result of a legal proceeding in which the government is seeking to file a claim for its delinquent taxes”); it sees a payment made pursuant to a Chapter 11 plan as a payment made pursuant to a court order; and it distinguishes Muntwyler on the ground that the trustee there did not act pursuant to a court order, or a bankruptcy proceeding, thus taking the case outside the scope of Amos’s words “legal proceeding.” In essence, the IRS sees the words “voluntary” and “involuntary” as defining polar opposite points on a spectrum. At the “voluntary” end, one finds the taxpayer who discharges a debt before the IRS brings a legal proceeding against him. At the “involuntary” end, one finds the taxpayer whose" }, { "docid": "8310166", "title": "", "text": "797, 801 (9th Cir.1987); In re Ribs-R-Us, Inc., 828 F.2d 199, 201 (3rd Cir.1987). See also Rev.Rul. 79-284, 1979-2 C.B. 83, modifying Rev.Rul. 73-305, 1973-2 C.B. 43, su-perceding Rev.Rul. 58-239, 1958-1 C.B. 94. However, when the payment is involuntary, the IRS may designate which of the taxpayers’ liabilities will be satisfied by the payment. Slodov v. United States, 436 U.S. 238, 252, n. 15, 98 S.Ct. 1778, 1788, n. 15, 56 L.Ed.2d 251 (1978); Technical Knockout, 833 F.2d at 801; Ribs-R-Us, 828 F.2d at 463. See also IRS Policy Statement P-5-60, IRS Manual (May 30, 1984). “The IRS is entitled to allocate tax payments from [a] ... debtor in a manner that maximizes its ability to fully recover taxes owed.” Ribs-R-Us, 828 F.2d at 204. The IRS relies heavily on Technical Knockout, 833 F.2d 797 (9th Cir.1987). In Technical Knockout, the Chapter 11 debt- or defaulted on payment of corporate income, social security and income withholding taxes. Prior to confirmation of the plan, the debtor sought to make payments on the IRS’s claims in order to escape personal liability, which is imposed on those responsible for collecting and forwarding the trust funds to the IRS. Id. at 798-99. The court held that: “payment made by a debtor in possession after filing a petition for reorganization under Chapter 11, but prior to confirmation of a reorganization plan, are involuntary and the bankruptcy court does not have equitable jurisdiction to order otherwise.” Id. at 802 (emphasis added). The IRS also cites, Matter of Ribs-R-Us, Inc., 828 F.2d 199 (3rd Cir.1987), which was relied on by the Technical Knockout court and applies the voluntary — involuntary analysis to a Chapter 11 post-confirmation payment. In Ribs-R-Us, the IRS’s priority tax claims were to be paid out over the maximum six-year period under the plan. The plan also provided for the payments to be allocated first to decrease the secured trust fund portion of the IRS’s claim, then to the remaining claims. The court concluded that “payment[s] to the IRS on pre-petition priority tax liabilities by the debtor in reorganization under Chapter 11 of the" }, { "docid": "10178212", "title": "", "text": "(while refraining from making a ruling regarding interest at this time), it is now appropriate to examine the treatment of these claims with respect to the facts of this case. The parties are in dispute over the government’s application of those funds already paid by the Debtor. The Debtor claims that since its plan provides only for the payment of “federal and state withholding and related trust fund employer taxes”, and that since interest and penalties are not included in these Class 2 administrative claims, the payments made on January 18, 1983 should have been allocated entirely to the base tax liability. The IRS justifies its distribution of that payment by claiming that because the payments were involuntary, they could be allocated according to the government’s discretion. Under IRS Policy Statement P-5-60 (reprinted in CCH Internal Revenue Manual at 1305-15) the government may allocate involuntary payments to principal, interest and penalties at its discretion, regardless of the taxpayer’s instructions. This policy has been judicially approved; see e.g., United States v. DeBeradinis, 395 F.Supp. 944, 952 (D.Conn.1975), aff'd mem. 538 F.2d 315 (2nd Cir.1976). It is the IRS’ contention that tax payments made during the course of bankruptcy proceedings are involuntary; case law discussing this issue tends to support the argument. In Amos v. Commissioner, 47 T.C. 65, 69 (1966), the tax court defined an involuntary payment as “any payment received by agents of the United States as a result of distraint or from a legal proceeding in which the government is seeking to collect its delinquent taxes or file a claim therefor”. Courts applying this definition have generally held that payments made during bankruptcy proceedings meet these criteria. In Muntwyler v. United States, 703 F.2d 1030 (7th Cir.1983), for example, the court held that the filing of a tax claim with a non-bankruptcy trustee was not sufficient administrative action to make the payments involuntary, but implied that it might have reached a different result had the debtor been involved in a formal bankruptcy proceeding. Id., 703 F.2d at 1034, n. 2. A recently decided case in this district expressly adopted" }, { "docid": "12383552", "title": "", "text": "of taxes pursuant to a Chapter 11 reorganization is “voluntary”. The district courts and bankruptcy courts have divided on this issue. In Amos v. Commissioner, 47 T.C. 65, 69 (1966), the Tax Court defined involuntary payment as follows: An involuntary payment of Federal taxes means any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor.; (emphasis added). Using this definition, the Seventh Circuit in Muntwyler v. United States, 703 F.2d 1030 (7th Cir.1983), held that payments to the IRS made by the trustee of an assignment for the benefit of creditors were voluntary because the only action by the IRS was the filing of a claim with the trustee and that therefore payments could be directed by the debtor to its trust fund liabilities. In reaching its conclusion, the court distinguished the assignment for the benefit of creditors from payments made in bankruptcy, viewing the latter situation as one in which “court action is involved.” Id. at 1033. The court stated that “[t]he government might have been correct in its claim if the corporation had been in bankruptcy which it was not.” Id. at 1034 n. 2. The issue arose before the Seventh Circuit again in In re Avildsen Tools & Ma chine, Inc., 794 F.2d 1248, 1250 (7th Cir.1986), on appeal from the district court’s holding that “since the corporation had made its payment to the IRS during the period of time it was reorganizing under Chapter XI of the Bankruptcy Act the corporation’s payment was not voluntary and thus the corporation had no right to direct the application of the payment to the type of liability it chose.” Id. at 1250. Because the Seventh Circuit affirmed on a different ground, the majority never reached the issue addressed by the district court. A concurring judge would have held that the debtor had no right to direct payment because the payment was involuntary. Id. at 1254 (Ripple, J., concurring). After briefing and argument" }, { "docid": "1196740", "title": "", "text": "all interest due, should be an unsecured priority claim. Finally, all penalties due should be classified as an unsecured general claim. Based on this apportionment, the unsecured general claim increases to approximately $45,000.00. Because the Debtors’ Chapter 13 plan proposes a de minimis return to general unsecured creditors, almost all of the approximate $45,000.00 in penalties would be discharged. CASE LAW PRIOR TO ENERGY RESOURCES Prior to 1990, the ability of a debtor to direct how payments to the IRS were to be applied was generally based on whether the payments were classified as voluntary or involuntary. If the payments were characterized as voluntary, the debtor could designate how the payments were to be applied. Nat. Bank of the Commonwealth v. Mechanics’ Nat. Bank, 94 U.S. 437, 24 L.Ed. 176 (1876). If the payments were invpluntary, the IRS had the right to apply the payments as it saw fit. Hewitt v. United States, 377 F.2d 921, 925 (5th Cir.1967). An involuntary payment of federal taxes is defined as: [a]ny payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor. Amos v. Commissioner, 47 T.C. 65, 69 (1966). This Court is in agreement with the majority of courts that payments made to the IRS pursuant to a debtor’s plan of reorganization are involuntary. See, e.g., In re Jehan-Das, 925 F.2d 237, 238 (8th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991); In re DuCharmes & Co., 852 F.2d 194, 196 (6th Cir.1988); Matter of Ribs-R-Us, Inc., 828 F.2d 199, 203 (3rd Cir.1987); In re Mikrut, 79 B.R. 404 (Bankr.W.D.Wis.1987); In re Frost, 47 B.R. 961, 965 (D.Kan.1985); 1A CollieR on Bankruptcy ¶ 22.03. The fact that Chapter 13 is a pure voluntary proceeding is not relevant to whether the payments to the IRS are voluntary. The Debtors cannot make a distribution to the IRS under a plan until after the plan is confirmed by the Court. Payments to the IRS" }, { "docid": "10177797", "title": "", "text": "1986); In re A & B Heating & Air Conditioning, Inc., 53 B.R. 54 (Bankr.Fla.1985). In Amos v. Commissioner, 47 T.C. 65 (1966), the court set forth the following definition: An involuntary payment of Federal taxes means any payment received by agents of the United States as a result of distraint or levy of from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor. In Muntwyler, the court found that a payment did not become involuntary “whenever an agency takes even the slightest action to collect taxes, such as filing a claim_” Id., at 1033. The court looked to the policy statements of the IRS in regard to a provision in the tax code, 26 U.S.C. Section 6672, which provide as follows: “The taxpayer, of course, has no right of designation in the case of collections resulting from enforced collection measures.” Based upon this policy statement, the court found that merely filing a claim did not amount to “enforced collection measures” sufficient to construe the payments as involuntary. Difficulty arises, however, when viewing transactions which occur in bankruptcy proceedings. While the reorganization includes legal proceedings, the actions of the debtor, at least in a Chapter 11 matter, are mainly voluntary. Several courts have addressed this problem and have reached different results. The court in In re Hartley Plumbing Company, Inc., 32 B.R. 8 (Bankr.Ala.1983), was faced with a situation similar to that presented herein, where the payments were voluntarily made by the debtor. The court found that due to the fact that the debtor could convert the case from a Chapter 7 to a Chapter 11 as a matter of right and could dismiss it if there was no showing of prejudice, the payments made to the IRS were voluntary, thereby entitling the debtor the right to designate the allocation of the payments. Further, where the bankruptcy court has approved a Chapter 11 plan which included such payments to the IRS, at least three courts have found the payments to be voluntary. See In re Lifescape, Inc., 54 B.R. 526" }, { "docid": "16850996", "title": "", "text": "Coal Co., Inc., 748 F.2d 1103, 1106-07 (6th Cir.1984) (extending Bruning to gap interest — i.e., post-petition, pre-confirmation interest — on non-dischargeable tax debts in Chapter 11 proceedings where the tax claim was paid in full under the plan); In re laylaw Drug, Inc., 621 F.2d 524, 528 (2d Cir.1980) (same); Hugh H. Eby Co. v. United States, 456 F.2d 923, 925 (3d Cir.1972) (same); and In re Johnson Electrical Corp., 442 F.2d 281, 283-84 (2nd Cir.1971) (same)) (also relying on a number of decisions under the Code, including: Leeper, 49 F.3d at 104; Fullmer, 962 F.2d at 1468; Burns, 887 F.2d at 1543; Hanna, 872 F.2d at 831; In re Willauer, 192 B.R. 796, 801 n. 4 (Bankr.D.Mass.1996); JAS Enters., 143 B.R. 718, 719 (Bankr.D.Neb.1992); and In re Fox, 130 B.R. 571, 575 (Bankr.W.D.Wash.1991). But see In re Wasson, 152 B.R. 639, 642 (Bankr.D.N.M.1993)). . Id. (relying on River Coal, 748 F.2d at 1107; Eby, 456 F.2d at 925 (\"That the underlying taxes were later paid in full here does not affect the fact that appellant had the use of the Government’s money during the period of the reorgani zation proceeding, and that since the underlying debt is not discharged by operation of Section 17 of the Bankruptcy Act, 11 U.S.C. § 35 (1964), neither is the interest which accrues by reason of the use of such money during the pendency of the proceedings.”)); Johnson Electrical, 442 F.2d at 284 (stating that the distinction between post-petition interest where the underlying tax is partially paid and where it is fully paid \"is not sufficiently substantial to warrant a different result. Either the filing of the petition stops the running of interest on federal tax claims against a bankrupt or it does not.”). . Heisson, 217 B.R. at 4. . Regarding the application of the payments, we note in passing that \"[u]nder [a] long-standing IRS policy, taxpayers may designate the application of tax payments that are voluntarily made, but may not designate the application of involuntary payments.\" United States v. Pepper-man, 976 F.2d 123, 127 (3d Cir.1992) (citing Rev.Rul. 79-284, 1979-2" }, { "docid": "15048553", "title": "", "text": "315 (2d Cir.1976). In Amos v. Commissioner, 47 T.C. 65 (1966), the Tax Court provided one frequently cited definition of “involuntary” in the voluntary-involuntary dichotomy: “An involuntary payment of Federal taxes means any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefore.” Id., 47 T.C. at 69. (emphasis ours). In Amos, supra, the Tax Court expressly cited O’Dell, supra, 326 F.2d at 456, as the minority view, (permits a creditor to direct the application of involuntary as well as voluntary payments as “involuntary”), and applied O’Dell to hold that the IRS’s district director could apply monies received from the taxpayer in a non-judicial setting, as the result of an IRS’s levy upon the taxpayer’s bank and insurance company, according to it’s policy since those payments were “involuntary.” We reject the IRS’s position that a mere unilateral prepetition administrative action, such as mailing a notice of levy, or the post-petition filing of a proof of claim, will ipso facto transfer a subsequent debt- or’s request for payment allocation in bankruptcy into an “involuntary” status which would permit the government to allocate according to it’s policy and prevent this Court from making the designation. As noted by the Seventh Circuit in response to the government’s contention that a claim, (submitted to a non-bankruptcy trustee in an assignment for the benefit of creditors matter), just like a levy, is an administrative action which is sufficient to render a taxpayer’s subsequent payment involuntary under Amos’ definition of involuntariness: “We Disagree. The distinction between a voluntary and involuntary payment in Amos and all the other cases is not made on the basis of the presence of administrative action alone, but rather the presence of court action or administrative action resulting in an actual seizure of property or money as in a levy. No authorities support the proposition that a payment is involuntary whenever an agency takes even the slightest action to collect taxes, such as filing a claim" }, { "docid": "18561428", "title": "", "text": "when a taxpayer makes voluntary payments to the Internal Revenue Service, it has a right to direct the application of payments to whatever type of liability it chooses. Muntwyler v. United States, 703 F.2d 1030, 1032 (7th Cir.1983); O'Dell v. United States, 326 F.2d 451, 456 (10th Cir.1964). However, when payments are involuntary, the policy of the Internal Revenue Service is to allocate the payments as it sees fit. IRS Policy Statement P-S-60, reprinted in CCH Internal Revenue Manual at 1305-15. This rule has been uniformly followed by the Courts, see, e.g., Muntwyler, supra, United States v. DeBeradinis, 395 F.Supp. 944, 952 (D.Conn.1975), aff’d mem., 538 F.2d 315 (2d Cir.1976). The Government’s position is “that payments made in the course of bankruptcy proceedings are ‘involuntary’ and neither the Debtor-in-possession nor the court may direct their application to particular liabilities” (U.S. Memorandum, p. 2). On the other hand, the Debtor contends: that he voluntarily sought relief under Chapter 11 of the Bankruptcy Code; that he voluntarily sold his homestead to pay his creditors; that there was no order of sale, no report of sale nor an order confirming sale and finally that cases administered under the Act are substantially different from those under the Code. Accordingly, the Debtor argues his payment should be described as voluntary. The Government relies on one of the most frequently cited definitions of involuntary payments, that of the Tax Court in Amos v. Commissioner, 47 T.C. 65, 69 (1966) which held: “an involuntary payment of Federal taxes means any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor.” The Government claims that this ease falls within the Amos definition of involuntariness because the proceeds were received “from a legal proceeding.” The Government bases its argument on the assumption that any payment in the course of a bankruptcy is involuntary. The court does not agree. Decisions from various courts in other circuits have fallen on both sides of the fence." } ]

[ { "docid": "22360115", "title": "", "text": "to someone first. There is, however, no mention of this incident in any of Ezold's evaluations. .In Lockhart, there was sufficient indirect evidence to support the jury’s verdict that age was the determinative factor in Lockhart’s discharge. This evidence included: (1) Lockhart had received satisfactory performance evaluations and merit salary increases in each year over his twenty-two year career with the company; (2) he had never received a reprimand or demotion; (3) the alleged reason for his discharge was discrepancies found in an audit of his office, however, he was never given an opportunity to explain these discrepancies prior to his termination; (4) his immediate supervisor testified that he was a good and dependable worker and that the standard company policy was to proceed through a series of reprimands before an employee would be dismissed; (5) the second person responsible for his termination also testified that Lockhart was never insubordinate and never deliberately violated company policy; and (6) there was evidence that the company had decided to undertake a major restructuring which resulted in the consolidation of several locations and the filling of new management positions by much younger and inexperienced individuals. 879 F.2d at 49-50. . It bears repeating in this final stage of discussion that Wolf’s impression of Ezold's legal analytic ability, informed but at the same time subjective, is the focal point in this case and that Wolf is entitled to form its own subjective judgment on that factor. Wolf is also entitled to be wrong in its judgment so long as it does not base its incorrect decision on unlawful sex discrimination or stereotype. . For hostile environment to be actionable under Meritor, it must be sufficiently severe or pervasive \"to alter the conditions of [the plaintiff’s] employment and create an abusive working environment.\" Id. at 67, 106 S.Ct. at 2405 (quotation omitted); see abo Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir.1971) (\"mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee” would not sufficiently affect conditions of employment to violate Title VII), cert. denied, 406 U.S. 957, 92" } ]

[ { "docid": "521023", "title": "", "text": "cites negative evaluations from Williams and St. Johns that contrast with the uniformly positive comments received by her higher rated peers. These explanations provide legitimate, nonretaliatory reasons for Carpenter’s downgrade. See Burdine, 450 U.S. at 257-58. Moreover, Carpenter has failed to show that Fannie Mae’s explanation was pretextual. We first reject her underlying contention that because she previously received a 5- and her performance has not changed, she had to have earned a 5- for 1997. See Fischbach v. District of Columbia Dep’t of Corrections, 86 F.3d 1180, 1183 (D.C.Cir.1996) (absent “error too obvious to be unintentional,” court respects employer’s “unfettered discretion” to evaluate employees) (citation omitted); Billet v. CIGNA Corp., 940 F.2d 812, 826 (3d Cir.1991) (rejecting argument based on past evaluations as theory “that things never change, a proposition clearly without basis in reality”), overruled in part on other grounds by St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Pre-1995 ratings were done by other supervisors and, of the vice presidents who received higher ratings than Carpenter in 1997, only one had been compared to Carpenter previously, receiving higher ratings than she in two previous years. We also find Carpenter’s claim that St. John’s and Williams’s criticisms were the product of collusion and fabrication without record support. See Randall v. Howard Univ., 941 F.Supp. 206, 213 (D.D.C.1996) (granting summary judgment where plaintiff offered no evidence to support theory that employees conspired against her), aff'd, 132 F.3d 1482 (D.C.Cir.1997). Rather, Carpenter’s admission that she had “little contact” with Williams may explain his view that she needed to assume greater responsibility and her failure to work directly with St. John on the Y2K project may similarly have led St. John to believe that she needed to be more “proactive.” 56(f) Aff. at 4, 5 ¶¶ 13, 17, JA 69, 70; see Valentino v. United States Postal Serv., 674 F.2d 56, 66 (D.C.Cir.1982) (management judgments regarding professionals often depend on subjective criteria). Although Carpenter infers retaliatory intent from her supervisors’ September 1996 comments, they also do not constitute evidence sufficient to allow a" }, { "docid": "2543879", "title": "", "text": "It is true that Paquin’s bonus plan objectives were used to evaluate him once in the past (in 1989). Assuming other employees continued to be evaluated entirely on their bonus plan objectives while Paquin was not, such a departure from procedure would still not be suspect. One of the asserted reasons for his termination is that Paquin failed to understand that external and internal matters must be considered in tandem. That is, if Paquin failed to communicate effectively developments in external matters to individuals inside the company, he was not doing his job properly. Paquin’s bonus plan objectives, therefore, were themselves consistent with Fannie Mae’s consideration of internal performance. Paquin also attacked Fannie Mae’s criticism of Paquin’s lack of “creativity” and his “stubbornness.” Paquin claims that the terms are age stereotypes that support an inference that Fannie Mae’s termination decision was age-related. We have held that a decision not “derived from stereotypical preconceptions about older people[],” Hayman v. National Academy of Sciences, 23 F.3d 535, 539 (D.C.Cir.1994), does not support an inference of age discrimination. Thus Pa-quin must show that Fannie Mae thought he lacked creativity because he was older. But Paquin’s evidence was limited to expert opinion testimony that factors such as “creativity” are sometimes based on age stereotypes. This is not enough. To prevail, Paquin must present evidence that the statements in fact spring from stereotypes. The context in which the statements were made — detailed evaluations of Paquin’s performance of management tasks one would expect to require creativity and flexibility — indicates they were based not on stereotypes but on objective assessments of job performance. Finally, Paquin argues that because he was more qualified than the person by whom he was replaced, a reasonable factfinder could conclude that Fannie Mae terminated him for discriminatory reasons. Although hiring a less qualified person can support an inference of discriminatory motive, see Harding v. Gray, 9 F.3d 150, 153-54 (D.C.Cir.1993), Paquin’s argument misses the mark. Paquin grounds his claim of superiority on his performance in external matters. But Fannie Mae never contested his qualifications in external matters; instead it insisted" }, { "docid": "521024", "title": "", "text": "than Carpenter in 1997, only one had been compared to Carpenter previously, receiving higher ratings than she in two previous years. We also find Carpenter’s claim that St. John’s and Williams’s criticisms were the product of collusion and fabrication without record support. See Randall v. Howard Univ., 941 F.Supp. 206, 213 (D.D.C.1996) (granting summary judgment where plaintiff offered no evidence to support theory that employees conspired against her), aff'd, 132 F.3d 1482 (D.C.Cir.1997). Rather, Carpenter’s admission that she had “little contact” with Williams may explain his view that she needed to assume greater responsibility and her failure to work directly with St. John on the Y2K project may similarly have led St. John to believe that she needed to be more “proactive.” 56(f) Aff. at 4, 5 ¶¶ 13, 17, JA 69, 70; see Valentino v. United States Postal Serv., 674 F.2d 56, 66 (D.C.Cir.1982) (management judgments regarding professionals often depend on subjective criteria). Although Carpenter infers retaliatory intent from her supervisors’ September 1996 comments, they also do not constitute evidence sufficient to allow a reasonable jury to infer that Fannie Mae’s reasons for her November 1997 rating were false. Carpenter herself cites a narrative evaluation of her 1996 performance, which Marra wrote in March 1997 after his September 1996 comments and after she filed Catpenter I in October 1996, as an accurate portrayal of her performance and evidence that the November 1997 rating must be the product of retaliation. See Uhl v. Zalk Josephs Fabricators, Inc., 121 F.3d 1133, 1136 (7th Cir.1997) (intervening satisfactory rating defeats causal link). Because Fannie Mae offered a legitimate nondiscriminatory reason for not selecting Carpenter for the senior vice president position—i.e., that Carpenter ad mittedly lacked the necessary litigation experience — Carpenter was required to show pretext by “demonstrating] that the proffered reason was not the true reason for the employment decision.” Burdine, 450 U.S. at 256. Aside from Kelly’s and Mar-ra’s September 1996 comments, the contentious nature of Carpenter I and the cold shoulder treatment which purportedly followed, Carpenter merely theorized that litigation experience was a “false qualification” intended solely to explain away" }, { "docid": "2543866", "title": "", "text": "the complainant succeeds in establishing a prima facie case, the second step of the McDonnell Douglas framework shifts the burden to the defendant employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. 411 U.S. at 802, 93 S.Ct. at 1824. If the defendant does so, then under the third step of McDonnell Douglas the complainant must produce evi dence showing that the defendant’s proffered reason is but a pretext for .discrimination. Id. at 804, 93 S.Ct. at 1825. We agree with the district court that Paquin established a prima facie case. Pa-quin was fifty years old at the time of his termination and therefore a member of the age class (at least 40 years old) protected by the ADEA. 29 U.S.C. § 631(a). Like'the district court, we believe that Paquin’s twenty-year tenure at Fannie Mae and his series of promotions within the Department suffice to show that he was qualified for his position. Finally, there is no dispute that Paquin was terminated and replaced by a younger person. Turning to the second step of the McDonnell Douglas framework, we conclude that Fannie Mae met its burden in articulating a legitimate non-discriminatory reason for its termination of Paquin. Fannie Mae claims that Paquin’s termination resulted from substandard performance, as evidenced primarily by annual performance evaluations for the years 1991-1993. The evaluations indicated areas in which Paquin needed improvement. For example, the 1991 evaluation, while praising Paquin’s performance in external matters, stated “Paul must devote considerably more effort to raising the level of his and his staffs ‘internal’ performance.” JA 348. The 1991 evaluation concluded “Paul’s challenge next year will be to bring his internal management performance up to a level approaching the exceptional performance he continues to post in the external arena with investors and analysts.” JA 349. The 1992 evaluation stated that the year had been “a mixture of positives and negatives.” JA 350. The positive aspects “were concentrated in the area of external investor relations, where Paul and his staff continue to get extremely high marks.” Id. The negative aspect was that “Paul has not made" }, { "docid": "2543867", "title": "", "text": "step of the McDonnell Douglas framework, we conclude that Fannie Mae met its burden in articulating a legitimate non-discriminatory reason for its termination of Paquin. Fannie Mae claims that Paquin’s termination resulted from substandard performance, as evidenced primarily by annual performance evaluations for the years 1991-1993. The evaluations indicated areas in which Paquin needed improvement. For example, the 1991 evaluation, while praising Paquin’s performance in external matters, stated “Paul must devote considerably more effort to raising the level of his and his staffs ‘internal’ performance.” JA 348. The 1991 evaluation concluded “Paul’s challenge next year will be to bring his internal management performance up to a level approaching the exceptional performance he continues to post in the external arena with investors and analysts.” JA 349. The 1992 evaluation stated that the year had been “a mixture of positives and negatives.” JA 350. The positive aspects “were concentrated in the area of external investor relations, where Paul and his staff continue to get extremely high marks.” Id. The negative aspect was that “Paul has not made as much progress as [the reviewer] had hoped for in what last year [the reviewer] had termed his ‘internal’ performance — departmental administration, attention to detail, planning and executing tasks in a timely fashion, and presentation design and speech writing.” Id. The evaluation set out three specific areas targeted for improvement— elimination of “repeated or blatant errors” in the Department’s work, increased creativity and greater insight into investor preferences and valuation processes. JA 350-51. In each of the three areas the evaluation included a specific instance during the past year that, according to the reviewer, manifested Paquin’s inadequate performance. The 1993 evaluation indicated that Paquin had failed to make much progress in two of the three areas and that in the third the reviewer postponed making a decision for another month. The evaluation was peppered with some strong criticisms. For example, a speech from Paquin’s Department was described as “unsophisticated, unfocused, and ... containing] not only overstatements and simplications [sic] but also outright inaccuracies.” JA 352. The reviewer concluded with the statements “I believe you" }, { "docid": "22944148", "title": "", "text": "in June 1998, and found several performance deficiencies (e.g., calling one file “a disgrace”); (4) Kearns and Judy Garee, the company’s manager of compensation, along with Hanenberger, collectively made the decision to place Peele on a provisional rating; and (5) four employees were involved in the decision to terminate Peele: Kearns, Hanenberger, Garee, and Joe Painter, the company’s director of claims. This evidence shows that Hanen-berger was not alone in his criticism of Peele, and that a consensus was reached by several Country Mutual employees that her failure to meet the company’s legitimate employment expectations over an 18-month period warranted her being terminated. We are unpersuaded by Peele’s argument that evidence of her poor job performance must be balanced against the “favorable performance reviews, raises, and promotions” she received during her eight-plus years with the - company. In most cases, when a district court evaluates the question of whether an employee was meeting an employer’s legitimate employment expectations, the issue is not the employee’s past performance but “whether the employee was performing well at the time of [her] termination.” Karazanos v. Navistar Intern. Transp. Corp., 948 F.2d 332, 336 (7th Cir.1991). See also Fortier v. Ameritech Mobile Communications, Inc., 161 F.3d 1106, 1113 (7th Cir.1998). Furthermore, prior job performance “evaluations, standing alone, [do not] create a genuine issue of triable fact when ... there have been substantial alterations in the employee’s responsibilities and supervision in the intervening period.” Fortier, 161 F.3d at 1113 (emphasis added). The bulk of the evidence documenting Peele’s performance deficiencies relates to her tenure as a CR2. Her responsibilities and work load as a CR2 were substantially different from those associated with her previous positions. The positive performance evaluations Peele received as a CR1, and, to even a lesser extent as a CSR, are therefore of no relevance. Finally, we have held that the general statements of co-workers, indicating that a plaintiffs job performance was satisfactory, are insufficient to create a material issue of fact as to whether a plaintiff was meeting her employer’s legitimate employment expectations at the time she was terminated. See, e.g., Dey" }, { "docid": "2543872", "title": "", "text": "93 S.Ct. at 1825 (evidence that white employees engaged in comparable activity to that used to justify failure to rehire black employee “especially relevant” to show proffered reason is pretext for discrimination). For example, were the evaluations to reveal that other executives received written evaluations less favorable than those of Paquin but nonetheless received higher numerical scores, this would tend to discredit Fannie Mae’s explanation that Paquin was terminated for a legitimate non-discriminatory reason. Even under the deferential abuse of discretion standard, the performance evaluations are sufficiently important to Paquin’s case to warrant reversal. Cf. Hollander v. American Cyanamid Co., 895 F.2d 80, 84-85 (2d Cir.1990) (vacating award of summary judgment where district court refused to compel defendant to provide information about termination of employees similarly situated to plaintiff). Because we believe the district court erred in not granting Paquin’s Rule 56(f) motion, we reverse the district court’s grant of summary judgment and remand for further discovery. We emphasize two points on remand. First, discovery is to be limited to the production of performance evaluations of individuals at the senior vice president level at Fannie Mae for the years 1991-1993. We are aware of the extensive history of discovery disputes in which the parties have been embroiled from the outset of the litigation. Aside from the performance evaluations already discussed, we affirm the district court’s discovery rulings. We stress that it will not be open to Paquin on remand to seek additional discovery, the production of which the district court has previously refused to compel. Second, our remand does not automatically turn Paquin’s wrongful termination claim into a jury issue. Although we believe summary judgment was premature given Fannie Mae’s nondisclosure of performance evaluations of other senior vice presidents, summary judgment will be available to Fannie Mae upon renewed motion unless the evaluations indicate that Fannie Mae’s reliance on Paquin’s alleged poor performance was a pretext for discrimination. We have reviewed Paquin’s opposition to Fannie Mae’s summary judgment motion and are not persuaded by it — accordingly, were Paquin not entitled to limited additional discovery, we would affirm the district" }, { "docid": "22306247", "title": "", "text": "Cir.1988). The employee must first establish a prima facie case of discrimination. The prima facie case has four elements. The employee must show: (1) he was in the protected class (persons between the ages of 40 and 70), (2) he was doing his job well enough to meet his employer’s legitimate expectations, (3) he was discharged or demoted, and (4) the employer sought a replacement for him. Weihaupt v. American Medical Ass’n, 874 F.2d 419, 427 (7th Cir.1989). If the employee is successful, this creates a rebuttable presumption of discrimination, and the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employee’s discharge. If the employ er is successful, the presumption dissolves, and the burden shifts back to the employee to show that the employer’s proffered reasons are a pretext. Id. (citations omitted). Navistar conceded that Karazanos was in the protected age class, terminated, and replaced with a younger person. Navistar contests the second element of Karazanos’ prima facie case. It contends that Karazanos was not performing according to its legitimate expectations and that was the reason for his termination. Karazanos argues that he was performing adequately and relies on his pre-1984 performance evaluations and a raise he received in 1988 to support his claim. As the district court correctly pointed out, however, the issue is whether the employee was performing well at the time of his termination. 1990 U.S. Dist. LEXIS at *12. “[W]hether one is qualified may change from time to time. The fact that an individual may have been qualified in the past does not mean that he is qualified at a later time.” Weihaupt v. American Medical Ass’n, 874 F.2d 419, 427 (7th Cir.1989), quoting Grohs v. Gold Bond Bldg. Prods., 859 F.2d 1283, 1287 (7th Cir.1988). We must focus, therefore, upon Karazanos’ performance at the time of his termination. Karazanos disagrees with Navistar’s assessment of his performance. It is critical to note, however, that he does not deny that the problems occurred. Rather, he objects to Navistar’s reaction to them. As the district court stated: “suffice it to say" }, { "docid": "2543874", "title": "", "text": "court. Because Fannie Mae has come forward with a legitimate non-diseriminatory reason for Paquin’s termination, the presumption that arises from Paquin’s prima facie case “simply drops out of the picture.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993). At this point all that is left to decide is “the ultimate question: whether plaintiff has proven ‘that the defendant intentionally discriminated against [him].’ ” Id. (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981)). Paquin fired a salvo of arguments attempting to raise a triable issue of fact on the ultimate question of discrimination but produced insufficient evidence to permit a reasonable factfinder to come down on his side. We review Paquin’s arguments briefly, construing, at the summary judgment stage, all evidence in the light most favorable to him as the non-moving party. See United States v. General Motors Corp., 565 F.2d 754, 757 (D.C.Cir.1977). Paquin first argues that the year-end performance evaluations insufficiently documented his alleged poor performance and that Fannie Mae was required to offer evidence of contemporaneous documents identifying specific deficiencies. The performance evaluations themselves, however, described general deficiencies bolstered by specific examples (for example, the 1992 evaluation identified a particular memorandum which, in the reviewer’s opinion, was incomplete). We have already concluded that the three performance evaluations satisfied Fannie Mae’s burden of proffering a legitimate nondiscriminatory reason. The burden then shifted to Paquin to produce evidence that could allow a reasonable factfinder to conclude that the evaluations were a pretext for discrimination. Paquin cannot meet his burden simply by claiming that Fannie Mae was required to produce more evidence of his poor performance. To accept Paquin’s position would contradict the Supreme Court’s clarification of the McDonnell Douglas framework in Burdine, 450 U.S. at 256, 101 S.Ct. at 1095, according to which the burden of persuasion remains at all times on the plaintiff. Thus once the defendant employer has articulated a legitimate non-discriminatory reason, “whatever its persuasive effect,” Hicks, 509 U.S. at 511, 113 S.Ct. at 2749," }, { "docid": "2543875", "title": "", "text": "his alleged poor performance and that Fannie Mae was required to offer evidence of contemporaneous documents identifying specific deficiencies. The performance evaluations themselves, however, described general deficiencies bolstered by specific examples (for example, the 1992 evaluation identified a particular memorandum which, in the reviewer’s opinion, was incomplete). We have already concluded that the three performance evaluations satisfied Fannie Mae’s burden of proffering a legitimate nondiscriminatory reason. The burden then shifted to Paquin to produce evidence that could allow a reasonable factfinder to conclude that the evaluations were a pretext for discrimination. Paquin cannot meet his burden simply by claiming that Fannie Mae was required to produce more evidence of his poor performance. To accept Paquin’s position would contradict the Supreme Court’s clarification of the McDonnell Douglas framework in Burdine, 450 U.S. at 256, 101 S.Ct. at 1095, according to which the burden of persuasion remains at all times on the plaintiff. Thus once the defendant employer has articulated a legitimate non-discriminatory reason, “whatever its persuasive effect,” Hicks, 509 U.S. at 511, 113 S.Ct. at 2749, the employer need not come forward with affirmative evidence showing its action was not discriminatory. Rather, it is the plaintiff who must offer evidence that the action was discriminatory. See id. Paquin next relies on the fact that his numerical evaluations were correlated in Fannie Mae’s computer system to letter descriptions. Thus a “4” meant “FE” or “frequently exceeds requirements.” A “3” meant “SM” or “successfully meets requirements.” Paquin argues that the labels raised a genuine issue of material fact as to his level of performance because they show that the three performance evaluations on which Fannie Mae relied judged him to “frequently exceed requirements” twice and to “successfully meet requirements” once. Whatever names one gives to the ratings, however, Paquin’s performance placed him by the end of 1993 near the bottom of the heap of senior vice presidents. Paquin also claims to have “rebutted each of the alleged deficiencies that Fannie Mae claimed justified his termination.” Appellant’s Opening Br. at 29. Rather than rebutting each of the numerous deficiencies, however, Paquin strains to create" }, { "docid": "2543870", "title": "", "text": "step of McDonnell Douglas, Paquin must prove that Fannie Mae’s proffered reason was a pretext for discrimination. 411 U.S. at 804, 93 S.Ct. at 1825. At this stage, if Paquin is unable to adduce evidence that could allow a reasonable trier of fact to conclude that Fannie Mae’s proffered reason was a pretext for discrimination, summary judgment must be entered against Paquin. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (“[T]he plain language of Rule 56(c) mandates the entry of summary judgment ... 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.”). The district court concluded that Paquin failed to meet his burden but we think that its grant of summary judgment was premature. In response to Fannie Mae’s summary judgment motion Paquin moved, pursuant to Federal Rule of Civil Procedure 56(f) , to deny Fannie Mae’s motion on the ground that further discovery was necessary. We review the district court’s discovery rulings for abuse of discretion. See, e.g., Brune v. IRS, 861 F.2d 1284, 1288-89 (D.C.Cir.1988). In his motion Paquin argued, inter alia, that Fannie Mae had failed to meet its discovery obligations by refusing to produce performance evaluations for Fannie Mae executives at Paquin’s level. Fannie Mae had produced a summary, covering the years 1990-1993, of the numerical ratings received by Fannie Mae’s thirty-two senior vice presidents (including Paquin). Paquin claims, however, that in order to respond to Fannie Mae’s motion for summary judgment he needs the underlying narrative evaluations of the executives. We agree. As discussed above, Fannie Mae defends the termination of Paquin based on his written performance evaluations, including his declining numerical ratings vis a vis other senior vice presidents. If Fannie Mae’s proffered reason is a pretext for discrimination, then comparable evaluations of other executives at his level are precisely the type of evidence that might enable Paquin to make his case. Cf. McDonnell Douglas, 411 U.S. at 804," }, { "docid": "521022", "title": "", "text": "without discovery and found that: (1) the September 1996 Kelly/Marra admonitions related solely to Carpenter I; (2) Fannie Mae’s explanation of the downgrade (i.e., a larger pool of vice presidents against whom Carpenter was evaluated and the criticisms of two clients) demonstrated a legitimate, non-discriminatory rationale and, absent evidence that the criticisms were fabricated, her claim failed; and (8) Fannie Mae’s explanation of her nonselection as senior vice president (i.e., the requirement of litigation experience) was also non-discriminatory. The district court further found Carpenter’s contention that discovery might prove otherwise speculative. See JA 10-19. Carpenter timely appealed. II. Carpenter urges that the district court erred in granting summary judgment because Fannie Mae allegedly retaliated against her in violation of DCHRA when it gave her a 4 + rating rather than the 5- she had received in the previous rating period. Fannie Mae responds that the number of vice presidents against whom Carpenter was rated increased from eight to thirteen in 1997 as a result of reorganization, making the rating pool more competitive. Fannie Mae also cites negative evaluations from Williams and St. Johns that contrast with the uniformly positive comments received by her higher rated peers. These explanations provide legitimate, nonretaliatory reasons for Carpenter’s downgrade. See Burdine, 450 U.S. at 257-58. Moreover, Carpenter has failed to show that Fannie Mae’s explanation was pretextual. We first reject her underlying contention that because she previously received a 5- and her performance has not changed, she had to have earned a 5- for 1997. See Fischbach v. District of Columbia Dep’t of Corrections, 86 F.3d 1180, 1183 (D.C.Cir.1996) (absent “error too obvious to be unintentional,” court respects employer’s “unfettered discretion” to evaluate employees) (citation omitted); Billet v. CIGNA Corp., 940 F.2d 812, 826 (3d Cir.1991) (rejecting argument based on past evaluations as theory “that things never change, a proposition clearly without basis in reality”), overruled in part on other grounds by St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Pre-1995 ratings were done by other supervisors and, of the vice presidents who received higher ratings" }, { "docid": "2543880", "title": "", "text": "Thus Pa-quin must show that Fannie Mae thought he lacked creativity because he was older. But Paquin’s evidence was limited to expert opinion testimony that factors such as “creativity” are sometimes based on age stereotypes. This is not enough. To prevail, Paquin must present evidence that the statements in fact spring from stereotypes. The context in which the statements were made — detailed evaluations of Paquin’s performance of management tasks one would expect to require creativity and flexibility — indicates they were based not on stereotypes but on objective assessments of job performance. Finally, Paquin argues that because he was more qualified than the person by whom he was replaced, a reasonable factfinder could conclude that Fannie Mae terminated him for discriminatory reasons. Although hiring a less qualified person can support an inference of discriminatory motive, see Harding v. Gray, 9 F.3d 150, 153-54 (D.C.Cir.1993), Paquin’s argument misses the mark. Paquin grounds his claim of superiority on his performance in external matters. But Fannie Mae never contested his qualifications in external matters; instead it insisted that his replacement surpassed him on the internal side — the area in which Paquin failed to improve after repeated warnings. B. Paquin’s Retaliation Claims An employer may not retaliate against an employee for conduct protected under the ADEA. The three elements of a retaliation claim are (1) the employee’s protected activity, (2) the employer’s action that has an adverse impact on the employee and (3) a causal relationship between the protected activity and the adverse action. See Passer v. American Chem. Soc’y, 935 F.2d 322, 331 (D.C.Cir.1991). Paquin claims Fannie Mae took two impermissible retaliatory actions against him. The first is Fannie Mae’s withdrawal of Paquin’s proposed severance package on March 17. The second is Fannie Mae’s removal of Paquin from its payroll on the same date. 1. Fannie Mae’s Withdrawal of the Severance Package Paquin claims that Fannie Mae unlawfully retaliated by withdrawing its proposed severance package in response to Pa-quin’s March 1, 1994 letter in which he claimed that his termination was based on age and that he was prepared to take" }, { "docid": "2543873", "title": "", "text": "of individuals at the senior vice president level at Fannie Mae for the years 1991-1993. We are aware of the extensive history of discovery disputes in which the parties have been embroiled from the outset of the litigation. Aside from the performance evaluations already discussed, we affirm the district court’s discovery rulings. We stress that it will not be open to Paquin on remand to seek additional discovery, the production of which the district court has previously refused to compel. Second, our remand does not automatically turn Paquin’s wrongful termination claim into a jury issue. Although we believe summary judgment was premature given Fannie Mae’s nondisclosure of performance evaluations of other senior vice presidents, summary judgment will be available to Fannie Mae upon renewed motion unless the evaluations indicate that Fannie Mae’s reliance on Paquin’s alleged poor performance was a pretext for discrimination. We have reviewed Paquin’s opposition to Fannie Mae’s summary judgment motion and are not persuaded by it — accordingly, were Paquin not entitled to limited additional discovery, we would affirm the district court. Because Fannie Mae has come forward with a legitimate non-diseriminatory reason for Paquin’s termination, the presumption that arises from Paquin’s prima facie case “simply drops out of the picture.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993). At this point all that is left to decide is “the ultimate question: whether plaintiff has proven ‘that the defendant intentionally discriminated against [him].’ ” Id. (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981)). Paquin fired a salvo of arguments attempting to raise a triable issue of fact on the ultimate question of discrimination but produced insufficient evidence to permit a reasonable factfinder to come down on his side. We review Paquin’s arguments briefly, construing, at the summary judgment stage, all evidence in the light most favorable to him as the non-moving party. See United States v. General Motors Corp., 565 F.2d 754, 757 (D.C.Cir.1977). Paquin first argues that the year-end performance evaluations insufficiently documented" }, { "docid": "2543877", "title": "", "text": "a triable issue of fact with respect to the two he raises on appeal. First, he notes that one of the performance evaluations criticized the caliber of his memoranda. Paquin claims to have rebutted the alleged deficiency by pointing to the reviewer’s failure during deposition to give an example of a deficient memorandum. A deponent’s inability to recall specifics three years later does not rebut the performance deficiencies on which Fannie Mae relied, especially where, as here, the evaluation itself included an example of a deficient memorandum. JA 350-51 (“[The reviewer] would cite a memo that went to the Office of the Chairman on Freddie Mac’s February press conference that neglected to mention the fact that Freddie Mac was proposing to increase the size of its mortgage portfolio.”). Second, one of the evaluations included Paquin’s alleged statement about Fannie Mae’s CEO as an example of Paquin’s failure to pay attention to detail. Paquin denied having made the statement. The alleged statement, however, was only one of three examples of Paquin’s failure to pay attention to detail. Accepting that Paquin did not make the statement, as we must on summary judgment, see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), a reasonable factfinder could not conclude, in light of the other performance shortcomings detailed in the evaluations, that Fannie Mae’s real reason for terminating Paquin was age-based. Next Paquin claims that Fannie Mae’s reliance on the three performance evaluations manifested procedural irregularities — and was therefore suspect — by unduly emphasizing the internal aspects of his job when his “performance objectives” were 90 per cent related to external matters. See Krodel v. Young, 748 F.2d 701, 709 (D.C.Cir.1984) (employer’s failure to follow own procedures probative of discrimination), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 51 (1985); Johnson v. Lehman, 679 F.2d 918, 922 (D.C.Cir.1982) (same). As Fannie Mae points out, however, the “performance objectives” to which Paquin refers were developed in connection with a bonus plan and did not encompass the entire range of Paquin’s responsibilities." }, { "docid": "2543871", "title": "", "text": "ground that further discovery was necessary. We review the district court’s discovery rulings for abuse of discretion. See, e.g., Brune v. IRS, 861 F.2d 1284, 1288-89 (D.C.Cir.1988). In his motion Paquin argued, inter alia, that Fannie Mae had failed to meet its discovery obligations by refusing to produce performance evaluations for Fannie Mae executives at Paquin’s level. Fannie Mae had produced a summary, covering the years 1990-1993, of the numerical ratings received by Fannie Mae’s thirty-two senior vice presidents (including Paquin). Paquin claims, however, that in order to respond to Fannie Mae’s motion for summary judgment he needs the underlying narrative evaluations of the executives. We agree. As discussed above, Fannie Mae defends the termination of Paquin based on his written performance evaluations, including his declining numerical ratings vis a vis other senior vice presidents. If Fannie Mae’s proffered reason is a pretext for discrimination, then comparable evaluations of other executives at his level are precisely the type of evidence that might enable Paquin to make his case. Cf. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825 (evidence that white employees engaged in comparable activity to that used to justify failure to rehire black employee “especially relevant” to show proffered reason is pretext for discrimination). For example, were the evaluations to reveal that other executives received written evaluations less favorable than those of Paquin but nonetheless received higher numerical scores, this would tend to discredit Fannie Mae’s explanation that Paquin was terminated for a legitimate non-discriminatory reason. Even under the deferential abuse of discretion standard, the performance evaluations are sufficiently important to Paquin’s case to warrant reversal. Cf. Hollander v. American Cyanamid Co., 895 F.2d 80, 84-85 (2d Cir.1990) (vacating award of summary judgment where district court refused to compel defendant to provide information about termination of employees similarly situated to plaintiff). Because we believe the district court erred in not granting Paquin’s Rule 56(f) motion, we reverse the district court’s grant of summary judgment and remand for further discovery. We emphasize two points on remand. First, discovery is to be limited to the production of performance evaluations" }, { "docid": "2543878", "title": "", "text": "detail. Accepting that Paquin did not make the statement, as we must on summary judgment, see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), a reasonable factfinder could not conclude, in light of the other performance shortcomings detailed in the evaluations, that Fannie Mae’s real reason for terminating Paquin was age-based. Next Paquin claims that Fannie Mae’s reliance on the three performance evaluations manifested procedural irregularities — and was therefore suspect — by unduly emphasizing the internal aspects of his job when his “performance objectives” were 90 per cent related to external matters. See Krodel v. Young, 748 F.2d 701, 709 (D.C.Cir.1984) (employer’s failure to follow own procedures probative of discrimination), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 51 (1985); Johnson v. Lehman, 679 F.2d 918, 922 (D.C.Cir.1982) (same). As Fannie Mae points out, however, the “performance objectives” to which Paquin refers were developed in connection with a bonus plan and did not encompass the entire range of Paquin’s responsibilities. It is true that Paquin’s bonus plan objectives were used to evaluate him once in the past (in 1989). Assuming other employees continued to be evaluated entirely on their bonus plan objectives while Paquin was not, such a departure from procedure would still not be suspect. One of the asserted reasons for his termination is that Paquin failed to understand that external and internal matters must be considered in tandem. That is, if Paquin failed to communicate effectively developments in external matters to individuals inside the company, he was not doing his job properly. Paquin’s bonus plan objectives, therefore, were themselves consistent with Fannie Mae’s consideration of internal performance. Paquin also attacked Fannie Mae’s criticism of Paquin’s lack of “creativity” and his “stubbornness.” Paquin claims that the terms are age stereotypes that support an inference that Fannie Mae’s termination decision was age-related. We have held that a decision not “derived from stereotypical preconceptions about older people[],” Hayman v. National Academy of Sciences, 23 F.3d 535, 539 (D.C.Cir.1994), does not support an inference of age discrimination." }, { "docid": "2543862", "title": "", "text": "Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON. KAREN LeCRAFT HENDERSON, Circuit Judge: Paul Paquin alleges that the Federal National Mortgage Association (Fannie Mae) violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., and the District of Columbia Human Rights Act (DCHRA), D.C.Code Ann. §§ 1-2501 et seq., by terminating him based on his age and by taking two retaliatory actions against him for engaging in conduct protected by the ADEA and the DCHRA. The district court awarded summary judgment to Fannie Mae on all of Paquin’s claims. Paquin challenges the district court’s award of summary judgment, its failure to order full discovery relating to performance evaluations of similarly situated employees at Fannie Mae and the magistrate judge’s denial of expert fee reimbursement. We reverse the district court’s refusal to order further discovery and, on that basis, reverse the district court’s grant of summary judgment on Paquin’s termi nation claim. With respect to Paquin’s two retaliation claims we affirm the district court on one and reverse on the other. Finally, we affirm the magistrate judge’s refusal to award expert fee reimbursement. I. Paquin, currently 53 years old, began working for Fannie Mae in 1972 and four years later moved into Fannie Mae’s newly formed Investor Relations Department (Department). Within that department he was promoted from manager to vice president to senior vice president, the highest position in the Department. The Department work has both an “external” aspect, involving relations with investors and analysts outside Fannie Mae, and an “internal” aspect, involving communications and strategy development within the company. The record is clear that Pa-quin performed the external aspects of his job well but, according to Fannie Mae, Pa-quin was deficient as to internal matters. Fannie Mae also claims that its senior management was disappointed with Paquin’s performance on specific projects, such as Fannie Mae’s 1993 Investor/Analyst Biennial Conference. Toward the end of 1993 Fannie Mae decided to terminate Paquin. Paquin was informed of the decision on February 14, 1994. He was offered a severance agreement, valued at approximately $600,000, was informed he" }, { "docid": "2543869", "title": "", "text": "must take a much more disciplined approach to your job” and “I look forward to your doing substantially better in 1994.” JA 353. Each annual evaluation also gave Paquin a numerical evaluation on a five point scale. In 1991 he received a 4, putting 14 of 21 senior vice presidents ahead of him. In 1992 he again received a 4, putting 14 of 23 senior vice presidents ahead of him. In 1993 he received a 3 + , putting 22 of 25 senior vice presidents ahead of him. In short the evaluations distinguished sharply between Paquin’s performance in external and internal matters: Paquin appeared to excel in the former but was consistently deficient with respect to the latter. His numerical scores over the three years show him slipping from the middle to the bottom of executives at the senior vice president level. Paquin’s performance deficiencies with respect to internal matters, as memorialized in the three year-end performance evaluations, suffice to meet Fannie Mae’s burden of articulating a non-discriminatory reason for Paquin’s termination. Under the third step of McDonnell Douglas, Paquin must prove that Fannie Mae’s proffered reason was a pretext for discrimination. 411 U.S. at 804, 93 S.Ct. at 1825. At this stage, if Paquin is unable to adduce evidence that could allow a reasonable trier of fact to conclude that Fannie Mae’s proffered reason was a pretext for discrimination, summary judgment must be entered against Paquin. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (“[T]he plain language of Rule 56(c) mandates the entry of summary judgment ... 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.”). The district court concluded that Paquin failed to meet his burden but we think that its grant of summary judgment was premature. In response to Fannie Mae’s summary judgment motion Paquin moved, pursuant to Federal Rule of Civil Procedure 56(f) , to deny Fannie Mae’s motion on the" }, { "docid": "2543863", "title": "", "text": "the other. Finally, we affirm the magistrate judge’s refusal to award expert fee reimbursement. I. Paquin, currently 53 years old, began working for Fannie Mae in 1972 and four years later moved into Fannie Mae’s newly formed Investor Relations Department (Department). Within that department he was promoted from manager to vice president to senior vice president, the highest position in the Department. The Department work has both an “external” aspect, involving relations with investors and analysts outside Fannie Mae, and an “internal” aspect, involving communications and strategy development within the company. The record is clear that Pa-quin performed the external aspects of his job well but, according to Fannie Mae, Pa-quin was deficient as to internal matters. Fannie Mae also claims that its senior management was disappointed with Paquin’s performance on specific projects, such as Fannie Mae’s 1993 Investor/Analyst Biennial Conference. Toward the end of 1993 Fannie Mae decided to terminate Paquin. Paquin was informed of the decision on February 14, 1994. He was offered a severance agreement, valued at approximately $600,000, was informed he should review it with his lawyer and was given until March 8, 1994 to accept the offer. The proposed severance agreement included a waiver of any legal claims. On March 1, 1994 Paquin’s lawyer wrote a letter to Fannie Mae stating that Paquin believed his age played a role in Fannie Mae’s decision to terminate him and requesting a severance package worth in excess of $4 million. In return Paquin offered to sign a release. Although the parties engaged in negotiations Fannie Mae ultimately refused to alter the terms of the original offer. According to Fannie Mae the deadline for accepting the original offer was extended to March 16,1994 but Paquin maintains there was no such extension. On March 17,1994 Paquin filed a charge of unlawful termination and retaliation with the United States Equal Employment Opportunity Commission (EEOC). That same day Fannie Mae sent a letter to Paquin stating that, because he had not accepted the now-expired offer, Paquin had been terminated effective close of business on March 16th without severance benefits. On June 8,1994" } ]

[ { "docid": "22656949", "title": "", "text": "from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” Justice White, concurring. I agree that the Court of Appeals was wrong in holding that the moving defendant must always support his motion with evidence or affidavits showing the absence of a genuine dispute about a material fact. I also agree that the movant may rely on depositions, answers to interrogatories, and the like, to demonstrate that the plaintiff has no evidence to prove his case and hence that there can be no factual dispute. But the movant must discharge the burden the Rules place upon him: It is not enough to move for summary judgment without supporting the motion in any way or with a con-clusory assertion that the plaintiff has no evidence to prove his case. A plaintiff need not initiate any discovery or reveal his witnesses or evidence unless required to do so under the discovery Rules or by court order. Of course, he must respond if required to do so; but he need not also depose his witnesses or obtain their affidavits to defeat a summary judgment motion asserting only that he has failed to produce any support for his case. It is the defendant’s task to negate, if he can, the claimed basis for the suit. Petitioner Celotex does not dispute that if respondent has named a witness to support her claim, summary judgment should not be granted without Celotex somehow showing that the named witness’ possible testimony raises no genuine issue of material fact. Tr. of Oral Arg. 43, 45. It asserts, however, that respondent has failed on request to produce any basis for her case. Respondent, on the other hand, does not contend that she was not obligated to reveal her witnesses and evidence but insists that she has revealed enough" } ]

[ { "docid": "16940186", "title": "", "text": "requiring application of the $1.2 million certificate of deposit which SIG claims it owns and by requiring performance of the Guarantees of the Senior Loan by Gurasich, Walden, West and the Topfers (hereinafter referred to collectively as “Guarantors”). Legal Analysis Under the Federal Rules of Civil Procedure, made applicable to this proceeding by Bankruptcy Rule 7056, a party will prevail on a motion for summary judgment when, “[t] he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). In order to prevail, the movant must demonstrate all elements of the cause of action, but once that burden is established the opposing party must set forth specific facts showing there is a genuine issue for trial. R.E.Cruise, Inc., v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975); Anderson v. Liber ty Lobby, Inc., 477 U.S. 242, 249-51, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita v. Zenith Radio Corp., 475 U.S. 574, 586-88, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). See also In re Bell, 181 B.R. 311 (Bankr.N.D.Ohio 1995). Con-clusory allegations, however, will not establish an issue of fact sufficient to defeat summary judgment. Wilson Indus., Inc. v. Aviva America, Inc., 185 F.3d 492, 494 (5th Cir.1999). In cases such as this, where the parties have filed cross-motions for summary judgment, the Court must consider each motion separately, since each party, as a movant for summary judgment, bears the burden to establish the nonexistence of genuine issues of material fact, and that party’s entitlement to judgment as a matter of law. Thus, the fact that both parties simultaneously argue that there is no genuine factual issues does not in itself establish that a trial is unnecessary, and the fact" }, { "docid": "13689571", "title": "", "text": "Interrogatory No. 29). The Debtor, however, related to the Court that without further education, her prospects for advancement are minimal. On April 2, 2001, the Debtor filed a petition in this Court for relief under Chapter 7 of the United States Bankruptcy Code. In her petition for relief, the Debtor listed Seventy-five Thousand Seventy-eight and 04/100 dollars ($75,078.04) in total unsecured debt. Thereafter, the Debtor commenced the instant complaint seeking to have her student loan discharged in accordance with the “undue hardship” standard set forth in 11 U.S.C. § 523(a)(8). LEGAL ANALYSIS Under 28 U.S.C. § 157(b)(2)®, a determination as to the dischargeability of a particular debt is a core proceeding. Thus, this matter is a core proceeding. The instant cause has been brought before the Court upon the Parties’ Cross Motions for Summary Judgment. Federal Rule of Civil Procedure 56(c), which is made applicable to this proceeding by Bankruptcy Rule 7056, sets forth the standard for a summary judgment motion and provides for in part: A party will prevail on a motion for summary judgment when “[t]he pleadings, depositions, answers to interrogatories, and admission 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). With respect to this standard, the movant must demonstrate all the elements of his cause of action. R.E. Cruise Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). In making this determination, the Court is directed to view all the facts in a light most favorable to the party opposing the motion. Matsushita v. Zenith Radio Corp., 475 U.S. 574, 586-588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In addition, in cases such as this where the Parties have filed Cross Motions for Summary Judgment, the Court must consider each motion separately, since each party, as a movant for summary judgment, bears the burden of establishing the nonexistence of genuine issues of material" }, { "docid": "9557133", "title": "", "text": "less than $250,000. DISCUSSION AND CONCLUSIONS Under Federal Rule of Civil Procedure 56, made applicable to this proceeding by Bankruptcy Rule 7056, a party is entitled to summary judgment if it demonstrates that there are no genuine issues as to any material fact and that it is entitled to judgment as a matter of law. Gill v. Rollins Protective Services Co., 773 F.2d 592, 595 (4th Cir.1985); In re Hartwig Poultry, Inc., 54 B.R. 37 (Bankr.N.D.Ohio 1985). The party seeking summary judgment has the initial burden of showing the absence of any material factual issues. Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979). If the movant fails to satisfy this initial burden, the party opposing the summary judgment motion has no obligation to submit evidence in opposition to the motion. Matter of Dempster, 59 B.R. 453, 455 (Bankr.M.D.Ga.1984). In ruling on a summary judgment motion, the court mits't view the evidence in a light most favorable to the party opposing the motion. Rollins Protective Services Co., 773 F.2d at 595. However, if the evidence relied upon on by the movant would entitle him to a directed verdict at trial if uncon-troverted, summary judgment will be granted unless the adverse party comes forward with evidence demonstrating the existence of a genuine issue of material fact. In re Independent Clearing House Co., 41 B.R. 985, 996 (Bankr.D.Utah 1984), aff'd in part and rev’d in part, 62 B.R. 118 (D.Utah 1986); In re F & S Central Manufacturing Corp., 53 B.R. 842, 846 (Bankr.E.D.N.Y.1985). The court may apply these standards to grant summary judgment on the entire case or it may grant a partial summary judgment with respect to certain issues. Dempster, 59 B.R. at 455. In order to prevail on an action to avoid a preferential transfer under 11 U.S.C. § 547, the trustee must prove the following elements: (1) a transfer of the debtor’s property; (2) to or for the benefit of a creditor; (3) on account of an antecedent debt; (4) made within 90 days (or 1 year if the creditor was an “insider”) prior to the" }, { "docid": "13553204", "title": "", "text": "523. Exceptions to Discharge A discharge under section 727, 1141, 1228[a] 1228(b), or 1328(b) of this section does not discharge an individual debtor from any debt— (6) for willful and malicious injury by the debtor to another entity or to the property of another entity. DISCUSSION Under 28 U.S.C. § Í57(b)(2)(I), a determination as to the dischargeability of a particular debt is a core proceeding. Thus, this matter is a core proceeding. This matter is before the Court upon the Plaintiffs Motion for Summary Judgment. A movant will prevail on a Motion for Summary Judgment if, “the pleadings, depositions, answers to interrogatories, and admission on file, together with 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), Fed. R.Civ.P. 56(c), Fed.R.Bankr.P. 7056. In order to prevail, the movant must demonstrate all elements of the cause of action. R.E. Cruise Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). Thereafter, the opposing party must set forth specific facts showing there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Inferences drawn from the underlying facts must be viewed in a light most favorable to the party opposing the motion. Matsushita v. Zenith Radio Corp., 475 U.S. 574, 586-588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); See also In re Bell, 181 B.R. 311 (Bankr.N.D.Ohio 1995). In addition, the party contesting the dischargeability of a debt under § 523(a)(6) has the burden of proving, by a preponderance of the evidence, that the debt- or’s conduct was both wilful and malicious. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); Spilman v. Harley, 656 F.2d 224, 229 (6th Cir.1981); In re Kimzey, 761 F.2d 421, 424 (7th Cir.1985); Homan v. Perretti, 172 B.R. 214, 216 (Bankr.N.D.Ohio 1994). Applying these standards, this Court finds that there is insufficient evidence before" }, { "docid": "13831715", "title": "", "text": "by Bankruptcy Rule 7056, and provides in pertinent part: A movant will prevail on a motion for summary judgment if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In order to prevail, the movant must demonstrate all the elements of the cause of action. R.E. Cruise, Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). When a party contests the dischargeability of a debt under § 523(a)(6) this entails establishing that there are no triable issues regarding whether the debtor’s conduct was both willful and malicious. Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991); Perkins v. Scharffe, 817 F.2d 392, 394 (6th Cir.1987); In re Clayburn, 67 B.R. 522 (Bankr.N.D.Ohio 1986). However, upon the moving party meeting the foregoing burden, the nonmoving party may not thereafter rest on his pleadings, but is instead required to set forth specific facts showing there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In making the determination of whether the parties have met their respective burdens, the Court is directed to view all facts in the light most favorable to the party opposing the summary judgment motion. Matsushita v. Zenith Radio Corp., 475 U.S. 574, 586-588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see also In re Bell, 181 B.R. 311 (Bankr.N.D.Ohio 1995). The essence of the Plaintiffs’ argument holds that the adjudication of the Debtor’s guilt under O.R.C. § 2903.11 for Felonious Assault, in connection with the automobile accident with Ms. Pickens, conclusively establishes that the Debtor’s conduct was both willful and malicious pursuant to § 523(a)(6). The Court does agree that on its face a conviction for Felonious Assault would seem to give rise to the type of behavior that would" }, { "docid": "6899767", "title": "", "text": "(5) the creditor incurred resulting damage. In re Phillips, 804 F.2d 930, 932 (6th Cir.1986); In re Martin, 761 F.2d 1163, 1165 (6th Cir.1985); In re Triplet, 139 B.R. 687, 689 (Bankr.N.D.Ohio 1992). A mere promise to be executed in the future is not sufficient to make a debt non-dischargeable, even though there is no excuse for the subsequent breach. In re Barker, 14 B.R. 852, 857 (Bankr.E.D.Tenn.1981); In re Guy, 101 B.R. 961, 978 (Bankr.N.D.Ind.1988). Plaintiff is unable to show any of the necessary elements to an action under § 523(a)(2)(A) in this case. Other than his bare allegation, there is no evidence offered or alleged to support the conclusion that Defendant made any representations at all, making it considerably unlikely that Plaintiff could show that the representations where known to be false when made, or made with the intent to defraud. Further, there can be no reasonable reliance when the Plaintiff himself wrote a letter directing the Defendant to keep the funds other than those requested in the letter. Plaintiff does not argue that Defendant has not paid the funds requested in the first letter. Rather, Plaintiff simply argues that the letter should be excluded, and attempts to make no justification for its existence. Thus, Plaintiff has shown no evidence or likelihood of finding evidence that would tend to prove the existence of a “trust” created for his benefit. Further, it is evident from the cheeks presented by Defendant (and Plaintiff has not objected to this evidence) that approximately Three Thousand Three Hundred Dollars ($3,300.00) of the money in the checking account was spent before Plaintiff wrote his second letter, where Plaintiff apparently makes a claim on the disputed funds for the first time. Thus, this Court finds that Plaintiffs cause of action fails under § 523, and will grant Defendant’s Motion for Summary Judgment. It should also be noted that under Plaintiffs allegations, he also could have asserted an exception to discharge under § 523(a)(4), for fraud while acting in a fiduciary capacity. Plaintiff claims that Defendant fraudulently disposed of funds she held in trust for the" }, { "docid": "3812059", "title": "", "text": "orders to turn over property of the estate, and other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor relationship are core proceedings pursuant to 28 U.S.C. § 157. Thus, this case is a core proceeding. The contested matter of the IRS’s Motion for Accounting, Disgorgement arid Payment of United States’ Post-Petition Tax Claim is before the Court upon the various professionals’ Motions for Summary Judgment, and the Cross Motion for Summary Judgment of the IRS. Motions for summary judgment are provided for in contested matters pursuant to Bankruptcy Rules 9014 and 7056. A movant will prevail on a motion for summary judgment 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In order to prevail, the movant must demonstrate all elements of the cause of action. R.E. Cruise, Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). Thereafter, the opposing party must set forth specific facts showing there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Inferences drawn from the underlying facts must be viewed in a light most favorable to the party opposing the motion. Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). See also In re Bell, 181 B.R. 311 (Bankr.N.D.Ohio 1995). The IRS moves for the disgorgement of interim professional fees paid during the course of this case while it was in a Chapter 11 posture, before its subsequent conversion to a Chapter 7 case. The IRS argues that because some of the Chapter 11 administrative creditors have been paid a greater share of their administrative claims than others, a redistribution needs to occur so that claims are paid in a more equitable manner." }, { "docid": "6899766", "title": "", "text": "checking account in question, the letters discussed supra, and her own affidavit. In her affidavit she states that she paid Plaintiff the monies requested in his first letter, and that she spent the money in the checking account thinking that Defendant was not claiming an interest the funds. Thus, Plaintiff makes two assertions. First, that Plaintiffs claim is invalid, and, second, that her actions were not fraudulent, and therefore the debt, if any, is not exempt from discharge under Bankruptcy Code § 523(a)(2)(A) as alleged by Plaintiff. While this adversarial proceeding is not the proee-durally proper proceeding to determine the validity of claims, the Court agrees on both counts, and finds no basis for the exception to discharge. The Plaintiff must prove five elements to succeed on its claim under § 523(a)(2)(A): (1) the Debtors made false representations, (2) the Debtors knew such representations to be false at the time they were made, (3) the representations were made with the intent to defraud the creditor, (4) the creditor must have reasonably relied on the representations, (5) the creditor incurred resulting damage. In re Phillips, 804 F.2d 930, 932 (6th Cir.1986); In re Martin, 761 F.2d 1163, 1165 (6th Cir.1985); In re Triplet, 139 B.R. 687, 689 (Bankr.N.D.Ohio 1992). A mere promise to be executed in the future is not sufficient to make a debt non-dischargeable, even though there is no excuse for the subsequent breach. In re Barker, 14 B.R. 852, 857 (Bankr.E.D.Tenn.1981); In re Guy, 101 B.R. 961, 978 (Bankr.N.D.Ind.1988). Plaintiff is unable to show any of the necessary elements to an action under § 523(a)(2)(A) in this case. Other than his bare allegation, there is no evidence offered or alleged to support the conclusion that Defendant made any representations at all, making it considerably unlikely that Plaintiff could show that the representations where known to be false when made, or made with the intent to defraud. Further, there can be no reasonable reliance when the Plaintiff himself wrote a letter directing the Defendant to keep the funds other than those requested in the letter. Plaintiff does not argue" }, { "docid": "3413496", "title": "", "text": "unse cured debt. With respect to this debt, the Debtor asserts that she and her husband only resorted to bankruptcy after having had explored other options. In particular, the Debtor asserted that she and her husband went to “Consumer Credit Counseling twice in an effort to resolve their outstanding debts which included the student loans and both times were advised that they could not be helped which resulted in the Chapter 7 Bankruptcy proceeding being filed on behalf of the Plaintiff and her spouse.” (Plaintiff Memorandum in Support of Motion for Summary Judgment, at pg. 4). LEGAL DISCUSSION Under 28 U.S.C. § 157(b)(2)(I), a determination as to the dischargeability of a particular debt is a core proceeding. Thus, this matter is a core proceeding. The instant cause has been brought before the Court upon the Parties’ Cross Motions for Summary Judgment. Federal Rule of Civil Procedure 56(c), which is made applicable to this proceeding by Bankruptcy Rule 7056, sets forth the standard for a summary judgment motion and provides for in part:' A party will prevail on a motion for summary judgment when “[t]he pleadings, depositions, answers to interrogatories, and admission 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.” Celotex Corp. v. Catrett, 477 U.S. 817, 822, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). With respect to this standard, the movant must demonstrate all the elements of his cause of action. R.E. Cruise Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). In making this determination, the Court is directed to view all the facts in a light most favorable to the party opposing the motion. Matsushita v. Zenith Radio Corp., 475 U.S. 574, 586-588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In addition, in cases such as this where the Parties have filed Cross Motions for Summary Judgment, the Court must consider each motion separately, since each party, as a movant for summary judgment, bears the burden of establishing the" }, { "docid": "13689572", "title": "", "text": "judgment when “[t]he pleadings, depositions, answers to interrogatories, and admission 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). With respect to this standard, the movant must demonstrate all the elements of his cause of action. R.E. Cruise Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). In making this determination, the Court is directed to view all the facts in a light most favorable to the party opposing the motion. Matsushita v. Zenith Radio Corp., 475 U.S. 574, 586-588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In addition, in cases such as this where the Parties have filed Cross Motions for Summary Judgment, the Court must consider each motion separately, since each party, as a movant for summary judgment, bears the burden of establishing the nonexistence of genuine issues of material fact, and that party’s entitlement to judgment as a matter of law. French v. Bank One, Lima N.A. (In re Rehab Project, Inc.), 238 B.R. 363, 369 (Bankr.N.D.Ohio 1999). For reasons of public policy, Congress chose to exclude from the scope of a bankruptcy discharge those debts incurred by a debtor to finance a higher education. In enacting this exception to discharge, however, Congress recognized that some student-loan debtors were still deserving of the fresh-start policy provided for by the Bankruptcy Code. As a result, Congress provided that a debtor could be discharged from their educational loans if it were established that excepting the obligations from discharge would impose an “undue hardship” upon the debtor and the debt- or’s dependents. Grine v. Texas Guaranteed Student Loan Corp. (In re Grim), 254 B.R. 191, 196 (Bankr.N.D.Ohio 2000). This exception to nondischargeability is contained in § 523(a)(8) which states: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt — ■ (8) for an" }, { "docid": "13831714", "title": "", "text": "a policy of insurance affording medical and uninsured motorist coverage. Now Grange Mutual, as a subrogee to any claim Ms. Pickens may have against the Debtor for the automobile accident, asserts that any amount the Debtor is found to owe Ms. Pickens should be determined a nondisehargeable debt pursuant to 11 U.S.C. § 523(a)(6). LAW Section 523(a) of the Bankruptcy Code provides in pertinent part: (a) A discharge under section 727, 1141, 1228[a] 1228(b), or 1328(b) of this section does not discharge an individual debtor from any debt— (6) for willful and malicious injury by the debtor to another entity or to the property of another entity. DISCUSSION Under 28 U.S.C. § 157(b)(2)(I), a determination as to the dischargeability of a particular debt is a core proceeding. Thus, this matter is a core proceeding. The Plaintiffs’ Complaint to determine the dischargeability of the Defendant’s Debt comes before the Court upon the Plaintiffs’ Summary Judgment Motion. The standard for a summary judgment motion is set forth in Fed.R.Civ.P. 56, which is made applicable to this proceeding by Bankruptcy Rule 7056, and provides in pertinent part: A movant will prevail on a motion for summary judgment if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In order to prevail, the movant must demonstrate all the elements of the cause of action. R.E. Cruise, Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). When a party contests the dischargeability of a debt under § 523(a)(6) this entails establishing that there are no triable issues regarding whether the debtor’s conduct was both willful and malicious. Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991); Perkins v. Scharffe, 817 F.2d 392, 394 (6th Cir.1987); In re Clayburn, 67 B.R. 522 (Bankr.N.D.Ohio 1986). However, upon the moving party meeting the foregoing burden," }, { "docid": "6899764", "title": "", "text": "23 Wright & Graham, Federal Practice and Procedure, s 5303 at 176 (1980). 1994 WL 264263 at 6. Plaintiff misunderstands the scope of Rule 408. Rule 408 bars the admission of evidence only when the evidence is offered to show the following inference: that because a settlement offer was made, the offeror must be liable, because people don’t offer to pay for things for which they are not liable. As stated above, not only is this inference is often factually incorrect, allowing the admission of evidence to show such an inference would have the effect of deterring settlement negotiations. Thus, the Rule seeks to bar evidence admitted to show this inference. In the ease at bar, the letters are offered to show a different inference. Defendant seeks to have the evidence admitted to show that Plaintiff intended, or caused Defendant to believe he intended, to allow Defendant to keep the money in her cheeking account either as a gift, or as repayment for debts incurred and monies spent by Defendant. That is, Defendant seeks to have the evidence admitted as direct proof of the underlying substance of the disputed issue in this case, not indirect proof that Plaintiff knows he must be liable because he made such an offer. Thus, the letters are admissible. The next issue to be considered is whether Defendant should be granted summary judgment. Summary judgment will be granted to the movant upon demonstration that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catreet, 477 U.S., 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In order to prevail, the movant must demonstrate all elements of the cause of action. R.E. Cruise, Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). A Motion for Summary Judgement must be construed in the light most favorable to the party opposing the Motion. In re Weitzel, 72 B.R. 253, 256 (quoting In re Sostarich, 53 B.R. 27 (Bankr.W.D.Ky. (1985)). Defendant comes forward in her Motion for Summary Judgment with copies of checks from the" }, { "docid": "6899765", "title": "", "text": "have the evidence admitted as direct proof of the underlying substance of the disputed issue in this case, not indirect proof that Plaintiff knows he must be liable because he made such an offer. Thus, the letters are admissible. The next issue to be considered is whether Defendant should be granted summary judgment. Summary judgment will be granted to the movant upon demonstration that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catreet, 477 U.S., 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In order to prevail, the movant must demonstrate all elements of the cause of action. R.E. Cruise, Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). A Motion for Summary Judgement must be construed in the light most favorable to the party opposing the Motion. In re Weitzel, 72 B.R. 253, 256 (quoting In re Sostarich, 53 B.R. 27 (Bankr.W.D.Ky. (1985)). Defendant comes forward in her Motion for Summary Judgment with copies of checks from the checking account in question, the letters discussed supra, and her own affidavit. In her affidavit she states that she paid Plaintiff the monies requested in his first letter, and that she spent the money in the checking account thinking that Defendant was not claiming an interest the funds. Thus, Plaintiff makes two assertions. First, that Plaintiffs claim is invalid, and, second, that her actions were not fraudulent, and therefore the debt, if any, is not exempt from discharge under Bankruptcy Code § 523(a)(2)(A) as alleged by Plaintiff. While this adversarial proceeding is not the proee-durally proper proceeding to determine the validity of claims, the Court agrees on both counts, and finds no basis for the exception to discharge. The Plaintiff must prove five elements to succeed on its claim under § 523(a)(2)(A): (1) the Debtors made false representations, (2) the Debtors knew such representations to be false at the time they were made, (3) the representations were made with the intent to defraud the creditor, (4) the creditor must have reasonably relied on the representations," }, { "docid": "23268109", "title": "", "text": "court proceeding up to the point of the Referee’s Hearing. No documentation was filed with the Court evidencing such participation. Plaintiff seeks to have the state court judgment found to be nondischargeable under 11 U.S.C. § 523(a)(2)(A) and § 523(a)(6). The Motion for Summary Judgment is based on the prior adjudication in the state court proceeding acting to preclude the re-litigation of the claims in Bankruptcy Court under the doctrines of res judicata and collateral estoppel. Defendant-Debtor, Eugene Weitzel, opposes the Motion for Summary Judgment. He claims that he was financially unable to afford legal counsel at the time the case was being tried. Defendant claims he was a “scapegoat” who was not directly involved in the sale of the solar energy system. The Defendant cites Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979) as requiring the Court to deny Plaintiff’s Motion and allow evidence to be presented to the Court on the discharge-ability of the debt. LAW Summary Judgment is properly granted when the Movant can demonstrate that there are no genuine issues of material fact, and that they are entitled to judgment as a matter of law. See, Bankruptcy Rule 7056 and Fed.R.Civ.P. 56. However, Mov-ant must be able to demonstrate all the elements of a cause of action in order to prevail. In re Hartwig Poultry, Inc., 57 B.R. 549, 551 (Bankr.N.D.Ohio 1986). A Motion for Summary Judgment must be construed in the light most favorable to the party opposing the Motion. In re Sostarick, 53 B.R. 27 (Bankr.W.D.Ky.1985). First, Plaintiff contends that the state court judgment precludes relitigation of the finding of fraud by the Bankruptcy Court under the doctrine of res judicata. Res judicata is “claim preclusion” which forecloses the litigation of matters which may have never been litigated. Claim preclusion therefore encompasses the law of merger and bar. See Migra v. Warren City School District Board of Education, 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 894 n. 1, 79 L.Ed.2d 56, 59 n. 1 (1984). Plaintiff argues that the Supreme Court case Brown v. Felsen is not" }, { "docid": "12196018", "title": "", "text": "pleadings, depositions, answers to interrogatories, and admission 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). With respect to this standard, the movant must demonstrate all the elements of his cause of action. R.E. Cruise Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). In making this determination, the Court is directed to view all the facts in a light most favorable to the party opposing the motion. Matsushita v. Zenith Radio Corp., 475 U.S. 574, 586-88, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In addition, in cases such as this where the Parties have filed Cross Motions for Summary Judgment, the Court must consider each motion separately, since each party, as a movant for summary judgment, bears the burden of establishing both the nonexistence of genuine issues of material fact, and that party’s entitlement to judgment as a matter of law. French v. Bank One, Lima N.A. (In re Rehab Project, Inc.), 238 B.R. 363, 369 (Bankr.N.D.Ohio 1999). As the starting point for this discussion, an initial word on the overall course this proceeding has traveled is necessary. Since the Debtors filed their Complaint, more than eight years ago, a long and contentious history has followed. It suffices to say in this regard that this proceeding, originally assigned to Judge Mor-genstern-Clarren, but recently transferred to this Court, has involved a contorted history through which both of the Parties have been able to form a knot which would have made Alexander shudder. By way of example, in just terms of resources, this proceeding is alleged to have cost the Debtors approximately $100,000.00 in attorney fees, not to mention the substantial resources expended by the United States, for a case in which the Debtors’ actual damages are admittedly limited — no more than $1,500.00 for each of the Debtors. The extensive history of the case has also seen" }, { "docid": "9432170", "title": "", "text": "acquires or becomes entitled to acquire within 180 days after such date— (B) as a result of a property settlement agreement with the debtor’s spouse, or of an interlocutory or final divorce decree[J DISCUSSION Orders to turn over property of the estate, and determinations concerning a debtor’s entitlement to exemptions are core proceedings per 28 U.S.C. § 157(b). Thus, this case is a core proceeding. The Trustee’s Motion for Turnover is now before the Court upon the Trustee’s Motion for Summary Judgment. The standard for a summary judgment motion is set forth in Fed.R.Civ.P. 56, which is made applicable to this proceeding by Bankruptcy Rule 7056, and provides in pertinent part: A movant will prevail on a motion for summary judgment if, “the pleadings, depositions, answers to inter rogatories, and admissions on file, together with 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In order to prevail, the movant must demonstrate all the elements of the cause of action. R.E. Cruise, Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). However, upon the moving party meeting the foregoing burden, the nonmoving party may not thereafter rest on his pleadings, but must instead set forth specific facts demonstrating that, in fact, there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In making the determination of whether the parties have met their respective burdens, the Court is directed to view all facts in the light most favorable to the party opposing the summary judgment motion. Matsushita v. Zenith Radio Corp., 475 U.S. 574, 586-88,106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see also In re Bell, 181 B.R. 311 (Bankr.N.D.Ohio 1995). The Trustee brings his Motion for “Turnover” under § 542 of the Bankruptcy Code which holds that any property of a debtor which the trustee can use or sell (or" }, { "docid": "12196017", "title": "", "text": "in the refund check was an interest payment of $101.69. In addition, during this same period of time — particularly, beginning April 19, 2000 — the evidence also reflects that the Debtor, Mrs. Harchar, made a number of calls to the IRS inquiring about the status of her tax refund. Although the evidence shows that her memory with respect to these calls was not always clear, it is accepted that Mrs. Harchar was never able to receive a definitive answer regarding the status of her refund. It is also accepted, for purposes of the matter now before the Court, that Mrs. Harchar was told by an IRS representative that she did not “deserve” her 1999 tax refund. PROCEDURE The instant matter is before the Court on the Parties’ Cross Motions for Summary Judgment. Federal Rule of Civil Procedure 56(c), which is made applicable to this proceeding by Bankruptcy Rule 7056, sets forth the standard for a summary judgment motion and provides, in part: A party will prevail on a motion for summary judgment when “[t]he pleadings, depositions, answers to interrogatories, and admission 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). With respect to this standard, the movant must demonstrate all the elements of his cause of action. R.E. Cruise Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). In making this determination, the Court is directed to view all the facts in a light most favorable to the party opposing the motion. Matsushita v. Zenith Radio Corp., 475 U.S. 574, 586-88, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In addition, in cases such as this where the Parties have filed Cross Motions for Summary Judgment, the Court must consider each motion separately, since each party, as a movant for summary judgment, bears the burden of establishing both the nonexistence of genuine issues of material fact, and" }, { "docid": "16031394", "title": "", "text": "summary judgment motion. [WJhere the movant is the defendant, or the party without the burden of proof on the underlying claim, the movant still has the initial burden of showing the court the absence of a genuine issue of material fact, but ... this does not require the movant to support the motion with affidavits or other materials that negated the opponent’s claim. In contrast, where ... “the party moving for summary judgment is the plaintiff, or the party who bears the burden of proof at trial, the standard is more stringent.” National State Bank v. Federal Reserve Bank, 979 F.2d 1579, 1582 (3d Cir.1992). Neuman, 304 B.R. at 193 (quoting Adams v. Consol. Rail Corp., 1994 WL 383633, at *1 (E.D.Pa. July 22, 1994)). Thus, as the party with the burden of proof, BNYM must show that there are no material facts in dispute, that the undisputed facts satisfy each element of its claim and that the evidence is such that no reasonable factfinder would disbelieve it. For the Debtor to prevail on the Cross-Motion, she must demonstrate that (1) material facts are not in dispute and that she is entitled to judgment as a matter of law in that the undisputed facts negate at least one element of BNYM’s claim or (2) BNYM has not come forward with sufficient support at least one element of its claim. See, e.g., Newman, 304 B.R. at 194. V. DISCUSSION A. Overview The Debtor does not deny that she is obligated to repay the Note she signed when she entered into the mortgage loan transaction with Allied in 2005. Nor does she contest the amount of either the total secured claim or the pre-petition arrears stated in the Proof of Claim. Nevertheless, she objects to BNYM’s claim because she asserts that the Trust is not the party to whom she is obliged to pay under the Note, ie., she disputes the Trust’s right to enforce her repayment obligation under the Note. In effect, she contends that BNYM is not her “true” creditor. The Debtor’s argument is premised on the general, indisputable proposition" }, { "docid": "4097347", "title": "", "text": "The Plaintiff-Debtor argues against Defendant’s Motion for Summary Judgment because the question of “fair valuation” presents an issue of material fact which cannot be resolved by merely examining Lawrence & Erausquin’s schedules, or their balance sheet. LAW Summary Judgment is properly granted when the Movant can demonstrate that there are no genuine issues of material fact, and that they are entitled to judgment as a matter of law. See, Bankruptcy Rule 7056 and Fed.R.Civ.P. 56. However, Mov-ant must be able to demonstrate all the elements of a cause of action in order to prevail. In re Hartwig Poultry, Inc., 57 B.R. 549, 551 (Bankr.N.D.Ohio 1986). A Motion for Summary Judgment must be construed in the light most favorable to the party opposing the Motion. In re Weitzel, 72 B.R. 253 (Bankr.N.D.Ohio 1987). Under 11 U.S.C. § 547(f), the Debtor is presumed to have been insolvent in and during the ninety (90) days immediately preceding the date of the filing of the petition. This presumption is rebuttable. It simply imposes on the transferee the burden of going forward with evidence of solvency to meet or rebut the statutory presumption. In re Almarc Mfg. Inc., 60 B.R. 584, 585 (Bankr.N.D.Ill.1986); Matter of Georgia Steel, Inc., 58 B.R. 153, 156 (Bankr.M.D.Ga.1984); Matter of Brooks, 44 B.R. 963 965 (Bankr.S.D.Ohio 1984). If the evidence presented is sufficient to rebut the § 547(f) presumption, the party seeking to avoid the transfer must meet the burden of proof imposed by § 547(g) without the aid of the statutory presumption of insolvency. In re Almarc Mfg. Inc., supra at 586; In re Alithochrome Corp., 53 B.R. 906, 912 (Bankr.S.D.N.Y.1985). In a preference action, the burden of proof is on the moving party to prove all elements by a preponderance of the evidence. 4 Collier on Bankruptcy § 547.21[5] at 547-85 (15th Ed.1987); In re Alithochrome, supra at 909; In re Hillcrest Foods, Inc., 40 B.R. 360, 362 (Bankr.D.Me.1984); In re Vasu Fabrics, Inc., 39 B.R. 513 515 (Bankr.S.D.N.Y.1984). But see In re Ace Finance Co., 64 B.R. 688, 693 (Bankr.N.D.Ohio 1986) (burden of persuasion is on Movant" }, { "docid": "3413497", "title": "", "text": "prevail on a motion for summary judgment when “[t]he pleadings, depositions, answers to interrogatories, and admission 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.” Celotex Corp. v. Catrett, 477 U.S. 817, 822, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). With respect to this standard, the movant must demonstrate all the elements of his cause of action. R.E. Cruise Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). In making this determination, the Court is directed to view all the facts in a light most favorable to the party opposing the motion. Matsushita v. Zenith Radio Corp., 475 U.S. 574, 586-588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In addition, in cases such as this where the Parties have filed Cross Motions for Summary Judgment, the Court must consider each motion separately, since each party, as a movant for summary judgment, bears the burden of establishing the nonexistence of genuine issues of material fact, and that party’s entitlement to judgment as a matter of law. French v. Bank One, Lima N.A. (In re Rehab Project, Inc.), 238 B.R. 363, 369 (Bankr.N.D.Ohio 1999). For reasons of public policy, Congress chose to exclude from the scope of a bankruptcy discharge those debts incurred by a debtor to finance a higher education. In enacting this exception to discharge, however, Congress recognized that some student-loan debtors were deserving of the fresh-start policy provided for by the Bankruptcy Code. As a result, Congress provided that a debtor could be discharged from their educational loans if it were established that excepting the obligations from discharge would impose an “undue hardship” upon the debtor and the debt- or’s dependents. Grine v. Texas Guaranteed Student Loan Corp. (In re Grine), 254 B.R. 191, 196 (Bankr.N.D.Ohio 2000). Specifically, § 523(a)(8) states that: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (8) for an educational benefit overpayment" } ]

[ { "docid": "7815522", "title": "", "text": "hence there was no danger that, after being arrested, he “could have used any weapons in the car or could have destroyed any evidence of a crime Preston v. United States, 376 U.S. 364, 368, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964). Thus there was no emergency justifying-a search without a warrant. Preston did hold that a warrantless car search subsequent to an arrest was illegal, but there the search was not an incident to the arrest. It occurred at the police station to which both the parties arrested and the car had been brought. Thus the search “was too remote in time or place to have been made as incidental to the arrest * * Preston v. United States, supra, 376 U.S. at 368, 84 S.Ct. at 884. See also Smith v. United States, 118 U.S.App.D.C. -, 335 F.2d 270 (1964). We recognize, of course, the logic in appellant’s argument. After his arrest there was no danger from unseen weapons or of evidence disappearing from the locked trunk of the car. The status quo with respect to the trunk could have been maintained until a search warrant was issued, particularly since the ear itself was impounded by the police. Cf. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). But as far as we are aware, no court has yet held that a car, including its trunk, may not be searched without warrant at the time and place its occupants are placed under lawful arrest. We are not persuaded that we should be the first court to do so. Affirmed. . Wong Sun v. United States, 371 U.S. 471, 483 n. 10, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Cooper v. United States, 94 U.S.App.D.C. 343, 345, 218 F.2d 39, 41 (1954)." } ]

[ { "docid": "9725667", "title": "", "text": "could have used any weapons in the car or could have destroyed any evidence of a crime — assuming that there are articles which can be the ‘fruits’ or ‘implements’ of the crime of vagrancy. Cf. United States v. Jeffers, 342 U.S. 48, 51-52 [72 S.Ct. 93, 95, 96 L.Ed. 59, 64] (1951). Nor, since the men were under arrest at the police station and the car was in police custody at a garage, was there any danger that the car would be moved out of the locality or jurisdiction. See Carroll v. United States, supra, 267 U.S., at 153 [45 S.Ct. at 285, 69 L.Ed. at 551].” (Emphasis supplied.) Defendant would apply the reasoning of Preston to his situation. He claims that because he had been taken into custody by the three policemen in Mrs. Larner’s living room, they had no right to extend their search further to the particular room he rented; that there was no justification for searching his room without a warrant in order to prevent him from assaulting the officers or to prevent him from destroying evidence of the crime. We do not think that the rule of Preston can be helpful to the defendant in the instant case under these circumstances. Preston proscribes searches and seizures which are not an incident to an arrest and are “remote in time or place”. Preston involved the search of an automobile, custody of which the police had taken at the time they arrested Preston. They did not, however, search the automobile at that time but removed it to the police station and subsequently had it towed to a garage. Thereafter, with Preston safely incarcerated in jail and his automobile towed to and stored in a garage in police custody, the search began. Certainly, as held in Preston, such search and seizure was remote in time and place so that it was not an incident of the arrest, made contemporaneously therewith. Cf. Adams v. United States, 1964, 118 U.S.App.D.C. 364, 336 F.2d 752. Our situation here is entirely different. Defendant’s arrest in the first instance was based upon" }, { "docid": "7580091", "title": "", "text": "person of the one arrested to include the premises under his immediate control. In United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L.Ed. 653 (1950), also preChimel, the Court noted that there was no fixed formula for the reasonableness test to be applied and that validity of searches incident to lawful arrest turns upon reasonableness under the circumstances and not upon the practicability of procuring a search warrant since such warrant is not required. The Court considered car searches in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) and Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). In Preston, although acknowledging that police have the right to search and seizure contemporaneously with arrest (and this extends to things under the accused’s immediate control), justification for such a warrantless search was held absent where the search was remote in time or place from the arrest. The Court stated that once an accused was under arrest and in custody, a search made at another place, without warrant, is simply not incident to arrest and the fact that the police may have had a right to search the car when they first came on the scene (because the arrest was valid or they had probable cause to think the car stolen — defendant was in charged with vagrancy), that does not decide the question of the reasonableness of the search at a later time and at another place. Although Preston placed some limitation on car searches following arrest, Cooper supports the district court’s ruling here. The Court in Cooper, perhaps not very convincingly, distinguished Preston and said that much of Preston’s rationale was based on the fact that the defendant there was arrested for vagrancy, and the car being towed was apparently only for Preston’s convenience; in such a case the Court stated that the fact that police had custody of Preston’s car was totally unrelated to the vagrancy charge for which they arrested him and their subsequent search was also totally unrelated thereto. In Cooper, the search" }, { "docid": "4320331", "title": "", "text": "Detective Baker then returned to the car and found under its front seat an empty envelope with the store owner’s writing on it. A hearing was held on defendant’s motion to suppress the evidence taken from the car. The court denied the motion except as to some articles obtained from the trunk of the car two days after the arrest and not now involved. The tools, quarters, brass fittings and envelope were admitted in evidence at trial. It is contended this evidence was obtained by an unlawful search and seizure and, therefore, that its admission was reversible error. Defendant conceded that probable cause existed for his arrest. This simplifies the problem. The tools, rolls of quarters and brass fittings were admissible in evidence if seized as incidental to the lawful arrest. Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed. 2d 777. As that case holds, however, to come within this exception to the necessity for a warrant the seizure must be contemporaneous with the arrest and not remote from it either in time or place. In Preston the search of the automobile without a warrant was held not incidental to Preston’s arrest for vagrancy, for the arrest had occurred idi n he was in the automobile and the search of the automobile was not made until it had been driven to the station and then towed to a garage. In holding the search to be unreasonable under the Fourth Amendment the Court pointed out that, although searches of motor cars must meet the test of reasonableness, questions raised by such searches cannot be treated as identical to those arising out of searches of fixed structures like houses. The Court said that what may be an unreasonable search of a house may be reasonable in the case of a motor car. 376 U.S. at 366-367, 84 S.Ct. 881. In the present case the tools, rolls of quarters and the bag or envelope containing the brass fittings were seen in the car by the officers at the time they arrested defendant. The car with these visible articles" }, { "docid": "21234553", "title": "", "text": "garage, was there any danger that the car would be moved out of the locality or jurisdiction.” The Court, in stating that a search is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime, was obviously not listing all of the justifications for a contemporaneous search. In Crawford v. Bannan, 6 Cir., 336 F.2d 505, 506, 507, this court was confronted with the issue whether a search of a motor vehicle made by police officers after the arrest of an accused, and a few minutes after he was removed from the scene in a patrol car, was lawful. In speaking for the court, Judge O’Sullivan held that the search was incidental and contemporaneous with the arrest, and, in the course of his opinion, said: “The narrow question we consider is whether the fact that the search here was made after Crawford was taken away in the patrol wagon renders it illegal under Preston. We do not so read this latest Supreme Court exposition of the difficult subject of search and seizure. We are of the opinion that the search under attack here was valid, as incidental to and contemporaneous with the arrest of Crawford. In Preston, the Court said that when a person is lawfully arrested ‘the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. * * * This right to search and seizure without a search warrant extends to things under the accused’s immediate control * * * and, to an extent depending on the circumstances of the case, to the place where he is arrested.’ 376 U.S. 367, 84 S.Ct. 883. (Emphasis supplied.) Mr. Justice Black gave as examples of circumstances which justify a contemporaneous and on the spot search without warrant ‘the need to seize weapons and other things which might be" }, { "docid": "15858646", "title": "", "text": "Fornash’s trial attorney at the magistrate’s evidentiary hearing that the evidence found in Fornash’s car was of “minimal evidentiary value.” The presence of the brown leather holster on the floor in the front seat of Fornash’s car could have been found by the jury to be inconsistent with Fornash’s claim that Verna owned the gun which he claimed she pulled on him while they were arguing. Furthermore, the jury could have inferred premeditation from the presence of the holster in the car although no testimony linking that holster to the gun was introduced at trial. The district court adopted the magistrate’s conclusion that the search was reasonable under current federal search and seizure law at the time of trial. In Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), police arrested several men sitting in a car for vagrancy, then transported the arrested men to police headquarters and towed the car to a garage. The car was then searched at the garage after the defendants were booked, and evidence unrelated to the vagrancy charge was seized. The Court determined that the search was not a contemporaneous one with the arrest, since the search was remote in time and place from the arrest, and there was no danger of the car being moved, since the men were under arrest and the car was in police custody. In Crawford v. Bannan, 336 F.2d 505 (6th Cir. 1964), cert. denied, 381 U.S. 955, 85 S.Ct. 1807, 14 L.Ed.2d 727 (1965), this court distinguished Preston. Crawford, arrested as he was opening the trunk of his car, was taken away in a police car, and a few minutes later the police searched his car. This court held that the search was incidental to and contemporaneous with Crawford’s arrest and therefore not an unlawful search. Finally, in Arwine v. Bannan, 346 F.2d 458 (6th Cir.), cert. denied, 382 U.S. 882, 86 S.Ct. 175, 15 L.Ed. 123 (1965), Arwine was left in his car as a decoy for several hours after his arrest by the police, who hoped to lure his accomplice" }, { "docid": "1359634", "title": "", "text": "of the defendant’s motion to suppress was directed at the search and seizure of the “vehicle and items contained therein.” The particular items obtained from the automobile that triggered defendant’s confessions were the false serial number attached to a door frame of the car and the confidential number attached to the car frame. The “popped” false serial number was received in evidence at the trial as Government exhibit 2, and testimony was received about the confidential number. We think it was improper to have received this evidence in view of the rule established in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777. There it was held that evidence obtained from a warrantless search of a car, soon after suspects were booked at a police station, was inadmissible under the Fourth Amendment, being “too remote in time or place to have been made as incidental to the arrest” (376 U.S. at page 368, 84 S.Ct. at page 881). The Preston rule was before this Court in Sisk v. Lane, 331 F.2d 235 (7th Cir. 1964). There the Court noted that clothing, sums of money and spotted mats, some of which were removed without a search warrant from Sisk’s car immediately after the arrested defendant was taken to sheriff’s headquarters, were the product of an illegal search and therefore inadmissible. Here the search of the car resulting in the discovery of the true and false serial numbers took place at the police station and at the Mancuso Chevrolet agency at least eight hours after the de- ■ fendant’s arrest at the gas station. Even if the police had the right to search the car at the gas station, this does .not decide the question of the reasonableness of the 9:00 A.M. search at the police station and subsequently at Mancuso’s Chevrolet agency. Preston v. United States, 376 U.S. 364, 368, 84 S.Ct. 881, 11 L.Ed.2d 777. As in the Preston case, it is unnecessary to decide whether the arrest of defendant was valid (cf. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed. 2d" }, { "docid": "6474356", "title": "", "text": "locality. Subsequent to the arrest and for reasons of safety, officer Decker drove defendant’s car back to the Clinton barracks where the search was conducted. Since there is no attempt to validate the search under any forfeiture proceedings, cf. Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), the reasonableness standards adopted by the Supreme Court in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), will control. In Preston the police received a call at three o’clock in the morning that three suspicious men were seated in an automobile that had been parked in the town’s business district since 10:00 P.M. the previous evening. The police questioned the men and, when they were not satisfied as to their true intentions, arrested the trio for vagrancy. There was no search made of the auto at the time of arrest and after it had been driven to the station by an officer it was then towed to a garage. Only after the three men had been booked did the police go to the garage and search the car — finding guns and other items implicating the men in a conspiracy to rob a bank. Speaking for the Court Mr. Justice Black stated that “[W]e think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.” 376 U.S. 364 at 368, 84 S.Ct. 881 at 884. Although this appeal superficially bears resemblance to the facts in Preston it is essentially well within the constitutional guidelines justifying a search incidental to a lawful arrest. The troopers first sighted Dentó driving along Route 22 at approximately 4:40 P.M. Twenty minutes later, at 5:00 P.M., trooper Decker was on the telephone with agent Mullady relating the arrest of the defendant and the finding of the counterfeit bills in the car. Clearly" }, { "docid": "21234557", "title": "", "text": "Cf. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). But as far as we are aware, no court has yet held that a car, including its trunk, may not be searched without warrant at the time and place its occupants are placed under lawful arrest. We are not persuaded that we should be the first court to do so.” See also United States v. Herberg, (U.S.Ct.Mil.App., decided Feb. 26, 1965). On appeal to the Supreme Court, our decision in the Preston case was reversed on the ground that the evidence obtained in the search of the car was inadmissible, being too remote in time or place to be treated as incidental to the arrest, and that it, therefore, failed to meet the test of reasonableness under the provisions of the Fourth Amendment. The law with regard to search of premises after a lawful arrest, as seen from the foregoing, has many windings; the question of the legality of such a search, with which we are here confronted, is a difficult one; and the various decisions of the Supreme Court do not easily conform to a general rule. In Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, it was held that although an arrest of a person, who was committing a felony in the discernible presence of a law-enforcement officer at a place where the officer was lawfully present, was a lawful arrest, nevertheless the seizure of contraband property in the presence of the officer at the time of arrest was not justified as incident to the lawful arrest where there was no excuse for a failure to obtain a search warrant. Mr. Chief Justice Vinson, joined by Mr. Justice Black, dissented on the ground that, in such a case, there was no need to secure a search warrant, saying: “To insist upon the use of a search warrant in situations where the issuance of such a warrant can contribute nothing to the preservation of the rights which the Fourth Amendment was intended to protect, serves only to open an" }, { "docid": "23227544", "title": "", "text": "and Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). We find no basis for so concluding, despite statements in concurring and dissenting opinions in Chapman, 365 U.S. at 618, 621-623, 81 S.Ct. at 780-781, rarely a safe guide to the holding of the majority. The Chapman case did not present the issue of a search incident to a lawful arrest. Preston, which did, cited the Rabinowitz decision, but proceeded on the ground that “[o]nce an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.” 376 U.S. at 367, 84 S.Ct. at 883, accord, James v. State of Louisiana, 86 S.Ct. 151 (Oct. 18, 1965); and the Court assumed that “the police had the right to search the car when they first came on the scene,” 376 U.S. at 367-368, 84 S.Ct. at 833. The rule that officers making a valid arrest of one or more occupants of an automobile can, without a warrant, then and there search the car including its trunk is reasonable not only because of necessity in many cases but because a speedy search may disclose information useful in tracking down accomplices still on the move. Although the narcotics offense for which Gorman and his associates here were arrested may not have been of the sort where such considerations are of great importance, it is undesirable to impose exceptions, necessarily difficult in practical application, on a rule so long established and so clearly understood by the police. Like the Court of Appeals for the District of Columbia, we are unpersuaded of the necessity, or the wisdom, of qualifying the rule so as to require officers lawfully arresting occupants of an automobile to make a considered and correct on-the-spot determination whether the circumstances of the arrest might render it feasible to secure a warrant before searching the car. See Adams v. United States, 118 U.S.App.D.C. 364, 336 F.2d 752 (1964), cert. denied, 379 U.S. 977, 85 S.Ct. 676, 13 L.Ed.2d 567 (1965). Gorman’s final point concerns the" }, { "docid": "9420192", "title": "", "text": "Consequently, I submit that it sanctions a practice that circumvents the Supreme Court’s decisions and unnecessarily upsets the desired balance. In carefully articulating those rules which limit the scope of vehicle searches, the Supreme Court has, I think, endeavored to reconcile the legitimate interests of society as a whole with the justified interest of a driver in the security and privacy of his automobile. In Preston, supra, for example, the post-impoundment exploratory search of a vehicle, in which four vagrancy suspects had been arrested, was held unconstitutional. The court wrote: “We think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.” 376 U.S. at 368, 84 S.Ct. 881, 884, 11 L.Ed.2d 777, 781. There are marked similarities between Preston and the case at hand. I can discern only one significant difference. That is that, here, there is the effort to justify the search on grounds that apparently were not urged in Preston. I do not underestimate the importance of this distinction. In a close case, resolving the question of whether a search is reasonable under the Fourth Amendment does indeed require that we “focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of private citizens.” Ca-mara v. Municipal Court, 387 U.S. 523, 534-535, 87 S.Ct. 1727, 1734, 18 L.Ed.2d 930, 939 (1968). In applying the appropriate test, I have concluded that in our case my Brothers have not correctly “balance [d] the need to search against the invasion which the search entails.” Id. at 536-537, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930, 940. While I can see the validity of some of those interests claimed to support careful so-called “inventory searches,” I can also see that those interests are put forth with overbreadth. If our attention is directed only to those interests, however valid, then we are led to the" }, { "docid": "9725663", "title": "", "text": "contend that his arrest was illegal but that the search following his arrest was a violation of his rights under the Fourth Amendment and that the trial court erred in denying the motion to suppress. The prohibition of the Fourth Amendment is against “unreasonable searches and seizures”. Defendant cites first the recent case of Preston v. United States, 1964, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777. That case involved the search of the defendant’s motor car and the seizure therefrom of a number of articles, including guns, masks and other equipment which might be used in the commission of crime. The petitioner and his associates had been arrested for vagrancy, searched for weapons and taken to police headquarters. Their automobile had not been searched at the time of the arrest but had been driven by an officer to the police station and then towed to a garage. Thereafter some of the police officers went to the garage, searched the car and found the guns, etc. The court there held at page 884 of 84 S.Ct. at page 781 of 11 L.Ed. 2d: “ * * * that the search was too remote in time or place to have been made as incidental to the arrest and concluded], therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.” In so holding, the court, however, said at page 883 of 84 S.Ct., at pages 780-781 of 11 L.Ed.2d: “ * * * Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. Weeks v. United States, 232 U.S. 383, 392 [34 S.Ct. 341, 344, 58 L.Ed. 652, 655, L.R.A. 1915B, 834] (1914); Agnello v. United States, 269 U.S. 20, 30 [46 S.Ct. 4, 5, 70 L.Ed. 145, 148, 51 A.L.R. 409] (1925). This right to search and" }, { "docid": "15858647", "title": "", "text": "to the vagrancy charge was seized. The Court determined that the search was not a contemporaneous one with the arrest, since the search was remote in time and place from the arrest, and there was no danger of the car being moved, since the men were under arrest and the car was in police custody. In Crawford v. Bannan, 336 F.2d 505 (6th Cir. 1964), cert. denied, 381 U.S. 955, 85 S.Ct. 1807, 14 L.Ed.2d 727 (1965), this court distinguished Preston. Crawford, arrested as he was opening the trunk of his car, was taken away in a police car, and a few minutes later the police searched his car. This court held that the search was incidental to and contemporaneous with Crawford’s arrest and therefore not an unlawful search. Finally, in Arwine v. Bannan, 346 F.2d 458 (6th Cir.), cert. denied, 382 U.S. 882, 86 S.Ct. 175, 15 L.Ed. 123 (1965), Arwine was left in his car as a decoy for several hours after his arrest by the police, who hoped to lure his accomplice back to the car. Arwine’s ear was finally searched with Arwine in handcuffs present after the car was driven by the police from the scene of the arrest to a police garage. This court held that the search was incidental to Arwine’s arrest and was not unreasonable under the circumstances. We determined that the search was not remote in place because the place where Arwine was arrested was his car, not the location where the car was parked. We further held that the presence of the defendant while the car was searched as well as the arresting officers retaining possession of the car distinguished this case from Preston. See also, United States v. McKendrick, 409 F.2d 181 (2d Cir. 1969) (search made after car moved to police station not unreasonable); United States v. Powell, 407 F.2d 582 (4th Cir.), cert. denied, 395 U.S. 966, 89 S.Ct. 2113, 23 L.Ed.2d 753 (1969); United States v. Dento, 382 F.2d 361 (3d Cir.), cert. denied, 389 U.S. 944, 88 S.Ct. 307, 19 L.Ed.2d 299 (1967) (search conducted twenty" }, { "docid": "21234556", "title": "", "text": "of the crime would be endangered by taking the steps necessary to obtain a search warrant? We do not believe that Preston commands such a holding. if * “We do not consider that the fact that Crawford had left the scene when his automobile was searched prevented such search from being incidental to his arrest.” In Adams v. United States, 118 U.S. App.D.C. 364, 336 F.2d 752, 753, where the accused had been placed under lawful arrest, the car in which he was found was searched at the police station to which the party arrested and the car had been brought. The court, after mentioning the argument of appellant relying on the Preston case, and the logic of his argument relating to that case, however stated: “After his arrest there was no danger from unseen weapons or of evidence disappearing from the locked trunk of the car. The status quo with respect to the trunk could have been maintained until a search warrant was issued, particularly since the car itself was impounded by the police. Cf. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). But as far as we are aware, no court has yet held that a car, including its trunk, may not be searched without warrant at the time and place its occupants are placed under lawful arrest. We are not persuaded that we should be the first court to do so.” See also United States v. Herberg, (U.S.Ct.Mil.App., decided Feb. 26, 1965). On appeal to the Supreme Court, our decision in the Preston case was reversed on the ground that the evidence obtained in the search of the car was inadmissible, being too remote in time or place to be treated as incidental to the arrest, and that it, therefore, failed to meet the test of reasonableness under the provisions of the Fourth Amendment. The law with regard to search of premises after a lawful arrest, as seen from the foregoing, has many windings; the question of the legality of such a search, with which we are here confronted, is a" }, { "docid": "10694152", "title": "", "text": "the accused. I refuse to accept the conclusion that, because the car was left outside when the accused were taken inside, the connection between them was so attenuated as to make it constitutionally unreasonable to search the car incident to the arrest. This case is just not Preston. Here, the car was searched contemporaneously with the arrest; it was searched at the police station at the time the accused were booked; and the vehicle was not in police custody. It was the converse of all these factors that induced the Supreme Court in Preston to hold the search and seizure illegal. This is evident from the following excerpt from its opinion: “. . . Here, we may assume, as the Government urges, that, either because the arrests were valid or because the police had probable cause to think the car stolen, the police had the right to search the car when they first came on the scene. But this does not decide the question of the reasonableness of a search at a later time and at another place. See Stoner v California, 376 US 483, 11 L ed 2d 856, 84 S Ct 889. The search of the car was not undertaken until petitioner and his companions had been arrested and taken in custody to the police station and the car had been towed to the garage. . . . Nor, since the men were under arrest at the police station and the car was in police custody at a garage, was there any danger that the car would be moved out of the locality or jurisdiction. See Carroll v United States, supra, 267 US, at 153, 69 L ed at 551. We think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.” [Preston v United States, 376 US 364, 367-368, 11 L ed 2d 777," }, { "docid": "1335257", "title": "", "text": "arrest was made. Harris v. United States, supra, 331 U.S. at 152-153, 67 S.Ct. 1098. Here the agent could well have believed there was additional counterfeit to which the unidentified man might seek to gain access and the Cadillac was a likely spot to locate it. We likewise find no basis for considering Harris and Rabinowitz to have been undermined by later decisions. Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), did not present the issue of a search incident to a lawful arrest. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), which did, held that the particular search — of an automobile at a garage to which it had been towed after the arrested man had been booked at the police station — was too “remote in time or place from the arrest.” 376 U.S. at 367, 84 S.Ct. at 883. The Court’s citation of Rabinowitz, which had also been cited with approval in Mr. Justice Clark’s opinion in Ker v. State of California, 374 U.S. 23, 41-42, 83 S.Ct. 1623 (1963), is hardly consistent with the notion that Preston intended to reintroduce the qualification Rabinowitz had repudiated, that an otherwise valid search incident to a lawful arrest would be invalid if circumstances permitted a search warrant to be obtained. Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964), and James v. State of Louisiana, 382 U.S. 36, 86 S.Ct. 151, 15 L.Ed.2d 30 (1965), add nothing to Preston on this score. Both the Court of Appeals for the District of Columbia and this court have held that Preston did not “require officers lawfully arresting occupants of an automobile to make a considered and correct on-the-spot determination whether the circumstances of the arrest might render it feasible to secure a warrant before searching the car.” United States v. Gorman, 355 F.2d 151, 155 (2 Cir. 1965), cert. denied, 384 U.S. 1024 (1966); accord, Adams v. United States, 118 U.S. App.D.C. 364, 336 F.2d 752, 753 (1964), cert. denied, 379 U.S. 977," }, { "docid": "10694153", "title": "", "text": "at another place. See Stoner v California, 376 US 483, 11 L ed 2d 856, 84 S Ct 889. The search of the car was not undertaken until petitioner and his companions had been arrested and taken in custody to the police station and the car had been towed to the garage. . . . Nor, since the men were under arrest at the police station and the car was in police custody at a garage, was there any danger that the car would be moved out of the locality or jurisdiction. See Carroll v United States, supra, 267 US, at 153, 69 L ed at 551. We think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.” [Preston v United States, 376 US 364, 367-368, 11 L ed 2d 777, 84 S Ct 881 (1964).] [Emphasis supplied.] I would affirm the decision of the board of review, Preston v United States, 376 US 364, 11 L ed 2d 777, 84 S Ct 881 (1964). Adams v United States, 336 F2d 752 (CA DC Cir) (1964). Trupiano v United States, 334 US 699, 92 L ed 1663, 68 S Ct 1229 (1948). United States v Rabinowitz, 339 US 56, 94 L ed 653, 70 S Ct 430 (1950). United States v Summers, 13 USCMA 573, 33 CMR 105. United States v Ross, 13 USCMA 432, 32 CMR 432." }, { "docid": "14386513", "title": "", "text": "of the arrest, held that this did not establish a right incident to the arrest to search in the manner described: “Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.” 376 U.S. at 367, 84 S.Ct. at 883. Subsequent development of the Preston rule has not been without difficulty. In numerous cases the courts have held searches of automobiles conducted at the time and place of arrest (“contemporaneous searches”) to be pursuant to the arrest. In other cases where search has been widely separated in time and location from the arrest, the search has been condemned. In intermediate situations the courts have differed. Thus United States v. Cain, 332 F.2d 999 (6th Cir. 1964), held invalid a search of a car taken to police headquarters, conducted about two hours after the arrests. In Sisk v. Lane, 331 F.2d 235 (7th Cir. 1964), petition for cert. dismissed, 380 U.S. 959, 85 S.Ct. 1100, 13. L.Ed.2d 977 (1965), the Seventh Circuit indicated that a search of an auto towed to police headquarters, conducted immediately after the arrival of the car, was in violation of Preston, and in United States v. Nikrasch, 367 F.2d 740 (7th Cir. 1966), a search at police headquarters eight hours after arrest was struck down. But in Arwine v. Bannan, 346 F.2d 458 (6th Cir.), cert. denied, 382 U.S. 882, 86 S.Ct. 175, 15 L.Ed.2d 123 (1965), a search at police headquarters was upheld where the defendant, after arrest, had remained in the car while it was being driven to headquarters and the search was begun immediately upon arrival at the station. And in Price v. United States, 121 U.S. App.D.C. 62, 348 F.2d 68, cert. denied, 382 U.S. 888, 86 S.Ct. 170, 15 L.Ed.2d 125 (1965), a search at a police station was upheld where it was begun as soon as the car was driven to the station and the officers, at the time of the arrest, had seen the objects for which the search was conducted. The court commented," }, { "docid": "14231142", "title": "", "text": "illegal is, we think, wholly without merit. In Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), and Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), cars were searched after the defendants had been arrested and after the cars had been taken into custody and removed from the scene. In Preston the Court pointed out that the search was “too remote in time or place to have been made as incidental to the arrest”, and held the search illegal. 376 U.S. at 368, 84 S.Ct. at 884. However, it was made quite clear that the right of the police, without a search warrant, to make a contemporaneous search pursuant to a lawful arrest “extends to things under the accused’s immediate control * * * and, to an extent depending on the circumstances of the case, to the place where he is arrested.” 376 U.S. at 367, 84 S.Ct. at 883. In Cooper, on the other hand, the search was upheld on the basis of its being “closely related to the reason petitioner was arrested, the reason his car had been impounded, and the rea son it was being retained.” 386 U.S. at 61, 87 S.Ct. at 791. In the instant case, we think the search was sufficiently contemporaneous with the arrest, notwithstanding the fact that the defendants were removed from the scene while the search was in progress. See Morris v. Boles, 386 F.2d 395 (4th Cir. 1967); Crawford v. Bannan, 336 F.2d 505 (6th Cir. 1964). Moreover, the search was closely related to the offense for which the defendants were arrested, and the officers were charged by statute with a duty to seize the car. 49 U.S.C.A. § 782. See United States v. Haith, 297 F.2d 65 (4th Cir. 1961). Nor is it of controlling importance that the officers might have delayed their search until they procured a search warrant. Cooper reaffirmed the holding of United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 94 L.Ed. 653 (1950), that the “relevant test is not whether" }, { "docid": "9420191", "title": "", "text": "reasonable steps taken to protect valuable property in plain view within lawfully impounded automobiles. Reversed and remanded to the district court for further proceedings. ELY, Circuit Judge (dissenting): I respectfully dissent. Not only do I find the majority’s conclusion unacceptable, I am also disturbed over the reasoning by which that conclusion is reached. The Supreme Court has long struggled to define the power of the police to search vehicles. See, e. g., Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In its attempt, the Court has always undertaken to balance the interests of the police with those of the drivers whose automobiles are searched. As I read the majority opinion, it does not meet our Fourth Amendment problem with engagement into the balancing process required of us. Consequently, I submit that it sanctions a practice that circumvents the Supreme Court’s decisions and unnecessarily upsets the desired balance. In carefully articulating those rules which limit the scope of vehicle searches, the Supreme Court has, I think, endeavored to reconcile the legitimate interests of society as a whole with the justified interest of a driver in the security and privacy of his automobile. In Preston, supra, for example, the post-impoundment exploratory search of a vehicle, in which four vagrancy suspects had been arrested, was held unconstitutional. The court wrote: “We think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.” 376 U.S. at 368, 84 S.Ct. 881, 884, 11 L.Ed.2d 777, 781. There are marked similarities between Preston and the case at hand. I can discern only one significant difference." }, { "docid": "6474357", "title": "", "text": "been booked did the police go to the garage and search the car — finding guns and other items implicating the men in a conspiracy to rob a bank. Speaking for the Court Mr. Justice Black stated that “[W]e think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.” 376 U.S. 364 at 368, 84 S.Ct. 881 at 884. Although this appeal superficially bears resemblance to the facts in Preston it is essentially well within the constitutional guidelines justifying a search incidental to a lawful arrest. The troopers first sighted Dentó driving along Route 22 at approximately 4:40 P.M. Twenty minutes later, at 5:00 P.M., trooper Decker was on the telephone with agent Mullady relating the arrest of the defendant and the finding of the counterfeit bills in the car. Clearly from the facts, the search of Den-to’s automobile was substantially contemporaneous with his arrest. See Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). Although the place of the search was remote from that of the arrest, the safety of the officers and defendant required that the vehicles be moved away from the flow of highway traffic. This is not a situation where the police take the car to the station in order to conduct a fishing expedition for evidence. Before the arrest was made troopers Decker and Cole had every reason to suspect that the defendant was hiding something in connection with his alleged offense since, when they motioned Dento’s car to the side of the road, both officers noticed him lean forward and apparently put something under the front seat. Once defendant’s car was removed to the safety of the Clinton barracks the police immediately began the search which uncovered the counterfeit money. Under the facts before us Preston v. United States, supra, does not control and" } ]

[ { "docid": "17004973", "title": "", "text": "fact. In performing our review of the District Court’s grant of summary judgment, we need only decide the materiality of the alleged fact that the officers handcuffed appellant before the administration of force. We find it unquestionably material. Our inquiry does not end here, however. Having found a material disputed fact, we must nonetheless uphold the grants of summary judgments if there is no genuine dispute as to the material fact. On this point, appellees argue that “[c]onclusory, unsubstantiated statements of an opposing party which are unsupported by specific facts are insufficient to overcome a summary judgment motion,” Br. for Appellee Murray at 21, citing Greene v. Dalton, 164 F.3d 671 (D.C.Cir.1999). Interestingly, appellant also cites Greene, for the accepted proposition that a “non-moving party’s affidavit [is] sufficient to defeat summary judgment in [the] face of contradicting testimony.” Appellant’s Reply Br. at 25. Appellant has the better of this duel, because Greene clearly states that a plaintiff may defeat a summary judgment granted to a defendant if the parties’ sworn statements are materially different. On this point, the court stated: In granting summary judgment for the Navy on Greene’s claim for sexual harassment, the district court quite clearly invaded the province of the jury. Greene submitted a sworn affidavit stating that Clause had harassed and raped her, and that the proffered diary suggesting otherwise was a forgery. If true, these allegations are indisputably sufficient to support a verdict against the Navy under Title VII. The allegations may, of course, be false. That is a question not for the court, however, but for the jury. As the party moving for summary judgment, the Navy bears the initial burden of identifying evidence that demonstrates the absence of any 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). On the record before us, however, we can determine neither the point at which Clause’s harassment became severe or pervasive nor when a reasonable person would have reported his behavior. A jury may resolve both these issues in favor of the Navy, but" } ]

[ { "docid": "18867128", "title": "", "text": "favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] 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. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “supports] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. 2. The Court Concludes that the Statutory Cap Limits the Plaintiffs Total Recovery of Compensatory Damages to $300,000 and that the Equitable Relief Available in this Case Is Limited to the Potential Recovery of Back Pay for the Period Preceding the Plaintiffs Resignation On January 25, 2011, the court granted the plaintiff leave to file a second amended complaint, which contained no new substantive allegations but clarified the nature of the relief sought by the plaintiff. See Minute Entry (Jan. 25, 2011); compare 1st Am. Compl. at 19-20 (requesting $300,000 in general damages per count, in addition to punitive damages) with 2d Am. Compl. at 19-22 (requesting $300,000 in compensatory damages per count, with the exception of counts seven and ten, as well as back pay, front pay, reinstatement and other remedies)." }, { "docid": "10054355", "title": "", "text": "more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “failfed] 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. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999); Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). B. Legal Standard for Review of the DEA’s Suspension Order Pursuant to the APA The APA allows “a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action ... [to be] entitled to judicial review thereof.” 5 U.S.C. § 702. The scope of judicial review under the APA is fairly limited. The agency action in review is “entitled to a presumption of regularity.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The reviewing court may set aside agency actions, findings, and conclusions when they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). To determine whether agency action is arbitrary or capricious, the court must consider whether: the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important" }, { "docid": "14883772", "title": "", "text": "judgment. II. LEGAL STANDARDS A. Summary Judgment Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). Moreover, summary judgment is properly granted against a party who “after adequate time for discovery and upon motion ... fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). Rather, the non-moving party must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. 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). B. Administrative Procedure Act The APA, 5 U.S.C. § 551 et seq., requires a reviewing court to set aside an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d 731, 736 (D.C.Cir.2001). In making this inquiry, the" }, { "docid": "2863194", "title": "", "text": "F.3d 1538, 1540 (D.C.Cir.1995). To determine which facts are “material,” a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “genuine issue” is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] 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. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “support[s] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. Finally, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish proof of discrimination, the court should view summary-judgment motions in such cases with special caution. See Aka v." }, { "docid": "20482192", "title": "", "text": "motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] 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. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “supports] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Ar-rington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. B. Legal Standard for FLSA Overtime Exemptions The FLSA requires that employers pay their employees one and a half times their “regular rate” for work in excess of forty hours per week, unless they are subject to certain enumerated exemptions. 29 U.S.C. § 207(a). As relevant here, the FLSA exempts from coverage those individuals “employed in a bona fide executive, administrative, or professional capacity.” Id. § 213(a). These overtime exemptions are “affirmative defense[s] on which the employer has the burden of proof.” Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974); accord Am. Fed’n of Gov’t Employees, AFL-CIO v. Office of Pers. Mgmt., 821 F.2d 761, 771 (D.C.Cir.1987) (noting that “the burden is on the employer to demonstrate the employee is in fact exempt”). The employer’s claim that an exemption applies “must be proved by clear and affirmative evidence or the employee must be given coverage under the Act.” Roney v. United States, 790 F.Supp. 23, 26 (D.D.C.1992); see also Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 501 (6th Cir.2007) (citing Roney," }, { "docid": "17058292", "title": "", "text": "Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “genuine dispute” is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] 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. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “support[s] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. 2. A Genuine Dispute of Material Fact Exists as to the “Falsity” Element of the Government’s FCA Claim The government argues that this court should conclude, as a matter of law, that the Indimi commission was not a “regular commission” within the meaning of the Ex-Im Bank’s supplier’s certificates. Govt's Mot. for Partial Summ. J. at 16-17. The government contends" }, { "docid": "8729201", "title": "", "text": "202 (1986). A “genuine issue” is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] 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. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “support[s] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. C. The Plaintiff’s Sexual Harassment Claim Title VII requires an employee to file a charge of discrimination with the EEOC within 180 days of the alleged unlawful employment practice, or within 300 days of the alleged unlawful employment practice if the person aggrieved has initially instituted a proceeding with a state or local agency. 42 U.S.C. § 2000e — 5(e)(1); see also Park v. Howard Univ., 71 F.3d 904, 907 (D.C.Cir.1995)" }, { "docid": "18986951", "title": "", "text": "nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] 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. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “supports] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. Finally, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish proof of discrimination, the court should view summary judgment motions in such cases with special caution. See Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879-80 (D.C.Cir.1997), overturned on other grounds, 156 F.3d 1284 (D.C.Cir.1998) (en banc); see also Johnson v. Digital Equip. Corp., 836 F.Supp. 14, 18 (D.D.C.1993). B. The Plaintiffs Hostile Work Environment Claim 1. Legal Standard for Hostile Work Environment Title VII prohibits an employer from discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment because of race, color, religion, sex, or national origin. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Toward that end, an employer may not create or condone a hostile or abusive work environment that is discriminatory. Meritor Sav. Bank, FSB v. Vinson, 477" }, { "docid": "20472015", "title": "", "text": "106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the non-moving party “fail[ed] 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. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “support[s] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir. 1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. Finally, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish proof of discrimination, the court should view summary-judgment motions in such cases with special caution. See Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879-80 (D.C.Cir.1997), overturned on other grounds, 156 F.3d 1284 (D.C.Cir.1998) (en banc); see also Johnson v. Digital Equip. Corp., 836 F.Supp. 14,18 (D.D.C.1993). B. Legal Standard for Discovery Under Rule 56(f) Under Rule 56(f), a court “may deny a motion for summary judgment or order a continuance to permit discovery if the party opposing the motion adequately explains why, at that" }, { "docid": "18316220", "title": "", "text": "affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). To determine which facts are “material,” a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “genuine issue” is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] 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. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “supports] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150,154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed" }, { "docid": "4774879", "title": "", "text": "inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] 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. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “supports] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. Finally, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish proof of discrimination, the court should view summary judgment motions in such cases with special caution. See Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879-80 (D.C.Cir.1997), overturned on other grounds, 156 F.3d 1284 (D.C.Cir.1998) (en banc); see also Johnson v. Digital Equip. Corp., 836 F.Supp. 14, 18 (D.D.C.1993). B. The Court Grants in Part and Denies in Part the Defendant’s Motion for Summary Judgment on the Plaintiffs Disparate Treatment and Retaliation Claims 1. Legal Standard for Race Discrimination Generally, to prevail on a claim of discrimination under Title VII, a plaintiff must follow a three-part burden-shifting analysis known as the McDonnell Douglas framework. Lathram v. Snow, 336 F.3d 1085, 1088 (D.C.Cir.2003)." }, { "docid": "2795754", "title": "", "text": "make a showing sufficient to establish the existence of an element essential to that party’s ease, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “support[s] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. B. The Court Grants the Plaintiffs Motion for Leave to File a SurReply The government attached the affidavit of former FBI agent Phyllis Sciacca to its combined opposition to the defendants’ summary judgment motions. Gov’t’s Opp’n, Ex. 14 (“Sciacca Affidavit”). Eller filed a reply requesting that the court either strike the affidavit or afford him an opportunity to depose Sciacca, as the government had never before disclosed her as a witness. Def. Eller’s Reply at 5 n. 3. The government then filed a motion for leave to file a surreply but directed its arguments to whether the affidavit should be stricken. Gov’t’s Mot. for Leave to File a Three-Page Sur-Reply (“Gov’t’s SurReply Mot.”). Eller objected and likewise limited his arguments to the appropriateness of the affidavit. Def. Eller’s Response to Gov’t’s Mot. for Leave to File a Sur-Reply (“Def. Eller’s Response”) at 1. Neither party proffered reasons as to whether leave to file the sur-reply should, in the first place, be granted. The decision to grant or deny leave to file a sur-reply is committed to the sound discretion of the court. Am. Forest & Paper Ass’n, Inc. v. EPA 1996 WL 509601, at *3" }, { "docid": "17727884", "title": "", "text": "its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] 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. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999); Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “support[s] his allegations ... with facts in the record,” Greene, 164 F.3d at 675 (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. Finally, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish proof of discrimination, the court should view summary-judgment motions in such cases with special caution. See Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 879-80 (D.C.Cir.1997), overturned on other grounds, 156 F.3d 1284 (D.C.Cir.1998) (en banc); see also Johnson v. Digital Equip. Corp., 836 F.Supp. 14, 18 (D.D.C.1993). 2. The Hostile Work Environment Claim a. Legal Standard for Hostile Work Environment Claims Title VII prohibits an employer from discriminating against any individual with respect" }, { "docid": "2863195", "title": "", "text": "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. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “support[s] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. Finally, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish proof of discrimination, the court should view summary-judgment motions in such cases with special caution. See Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879-80 (D.C.Cir.1997), overturned on other grounds, 156 F.3d 1284 (D.C.Cir.1998) (en banc); see also Johnson v. Digital Equip. Corp., 836 F.Supp. 14, 18 (D.D.C.1993). B. Adverse Employment Actions 1. Legal Standard for Adverse Employment Actions To demonstrate employment discrimination under Title VII, a plaintiff must have suffered an employment action that had “materially adverse consequences affecting the terms, conditions, or privileges of [the plaintiffs] employment ... such that a reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir. 2002). Within the context of Title VII, an “adverse employment action” is “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Taylor v. Small, 350 F.3d 1286, 1293 (D.C.Cir.2003) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). The action must result in “objectively tangible harm,” Forkkio, 306 F.3d at 1131, generally characterized by “direct economic harm,” Burlington" }, { "docid": "2795753", "title": "", "text": "U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). To determine which facts are “material,” a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “genuine issue” is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s ease, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “support[s] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. B. The Court Grants the Plaintiffs Motion for Leave to File a SurReply The government attached the affidavit of former" }, { "docid": "9596220", "title": "", "text": "one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] 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. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “supports] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the cen tral purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. 2. The Defendant’s Alleged Legal Malpractice The plaintiffs allege that the defendant committed legal malpractice by (1) failing to meet USDA-imposed deadlines in pursuing a settlement in their civil rights discrimination claim, (2) failing to disclose a conflict of interest that resulted from his work as a registered lobbyist and (3) failing to inform them of the USDA’s January 2001 settlement offer. See Compl. ¶¶ 7-8. The defendant argues that summary judgment should be granted in" }, { "docid": "1362415", "title": "", "text": "one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] 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. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “supports] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. 2. The Court Grants the Defendants’ Motion as to the Plaintiffs § 1983 Claims The plaintiff alleges that Wallace violated 42 U.S.C. § 1983 by depriving her of her Fourth Amendment rights against false imprisonment and false arrest and by using excessive force in doing so. Compl. ¶¶ 25-26. The defendants move for summary judgment on the grounds that Wallace is entitled to qualified immunity for his actions and that Wallace did not violate any of the" }, { "docid": "17255714", "title": "", "text": "242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “genuine issue” is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] 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. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “supports] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. Finally, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish proof of discrimination, the court should view summary-judgment motions in such cases with special caution. See Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 879-80 (D.C.Cir.1997), overturned on other grounds, 156 F.3d 1284 (D.C.Cir.1998) (en banc); see also Johnson v. Digital Equip. Corp., 836 F.Supp. 14, 18 (D.D.C.1993)." }, { "docid": "18316221", "title": "", "text": "than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] 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. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “supports] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150,154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.Sd at 675. B. The Defendant’s Arguments are Not Barred by Estoppel As a preliminary matter, the plaintiffs contend that the defendant is estopped from arguing that the IDEA precludes attorney fees for education advocates. Pis.’ Supp. Br. at 7. The plaintiffs point to the defendant’s failure to raise its arguments in the due process hearings and the defendant’s partial payment for educational advocates’ attorneys’ fees. Id. at 8. The defendant does not contest these facts, but it asserts that “estoppel will not lie against the Government in the absence of a showing of ‘affirmative misconduct,’ ” and making partial payments does not amount to “affirmative misconduct.” Def.’s Reply at 11-12 (citing LaRouche v. Fed. Election Comm’n, 28 F.3d 137, 142 (D.C.Cir.1994)). Although the plaintiffs had the opportunity to address whether the defendant’s conduct amounted to “affirmative misconduct,” the plaintiffs failed to do so, simply restating their initial arguments and citing only to case law applying estoppel to private parties." }, { "docid": "20482191", "title": "", "text": "judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). To determine which facts are “material,” a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “genuine issue” is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] 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. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “supports] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Ar-rington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. B. Legal Standard for FLSA" } ]

[ { "docid": "22564545", "title": "", "text": "Mr. Justice Roberts delivered the opinion of the Court. In these cases we must decide whether, where an executor avails himself of the option extended by the estate tax law to value a decedent’s gross estate as of one year after the decedent’s death, rents, dividends, and interest received and accrued during the year are to be added to the value of the property to which they are attributable and included in the value of the gross estate. The question arises under § 302 (j) of the Revenue Act of 1926 as added by § 202 (a) of the Revenue Act of 1935. No. 274 is a suit against the Collector to recover an overpayment of tax. The complaint alleged that the decedent died August 30, 1936; that in the estate’s return the executors elected to have the value of the gross estate determined by valuing it as of one year after the decedent’s death; that the Commissioner included in the estate a sum which was not in fact the decedent’s property at the time of her death but represented income, namely, rents, dividends, and interest earned by the estate subsequent to the decedent’s death; that the executors paid the tax and their claim for refund was rejected. The Collector’s answer raised no material issue of fact. Each party moved for judgment on the pleadings. The-court dismissed the complaint. The Circuit Court of Appeals affirmed, one judge dissenting. In Nos. 510 and 511, the executor of two decedents who died respectively October 9, 1936, and April 3, 1937, elected in its returns to have the gross estates valued as of one year after death or as of date of disposition. In each case the executor collected interest and dividends upon bonds and stocks forming part of the estate at decedent’s death. The sums so collected were not reckoned in fixing the values of the estates, except such portion of them as accrued prior to death. The Commissioner determined deficiencies due to the failure to return them. The Board of Tax Appeals affirmed his action and the Circuit Court of Appeals" } ]

[ { "docid": "3654218", "title": "", "text": "GODDARD, District Judge. The case came on for hearing on motion of plaintiffs for judgment on the pleadings and the cross motion by the defendant for' judgment in his favor. There is no dispute as to the facts and the sole issue of law presented is the validity of Article' 11, Regulation 80, which was adopted by the Commissioner of Internal Revenue as an interpretation of Section 202(a) of the Revenue Act of 1935, 26 U.S.C.A. § 411 (j). The entire case turns upon the point as to whether or not the regulation is in harmony with the Statute and is a reasonable exercise of the Commissioner’s power to make rules and regulations for the enforcement of the Revenue Act. See Section 1101 of the Revenue Act of 1926, 26 U.S.C.A. § 1691(a) (1). The pleadings show that plaintiffs are the duly appointed Executors of the Last Will and Testament of Ida H. Saks who died on August 30, 1936, a resident of New York City. As such Executors, they filed a Federal Estate Tax return in which they elected, in accordance with Section 202(a) of the Revenue Act of 1935, to have the property of the estate valued for the purposes of the estate tax as of the “optional valuation date” rather than as of the date of the decedent’s death. Section 202(a) of the Revenue Act of 1935 amends Section 302 of the Revenue Act of 1926, 44 Stat. 70, 26 U.S.C.A. § 411, so as to provide for such an election in the following manner: “If the executor so elects upon his return * * * the value of the grbss estate shall be determined by valuing all the property included therein on the date of the decedent’s death as of the date one year after the decedent’s death, except that (1) property included in the gross estate on the date of death, and, within one year after the decedent’s death, distributed by the executor * * * or sold, exchanged, or otherwise disposed of, shall be included at its value as of the time of such" }, { "docid": "13504093", "title": "", "text": "SWAN, Circuit Judge. This is an action by the executors of the will of Oliver Gould Jennings, a resident of Connecticut whose death occurred on October 13, 1936, to recover such part of the estate tax paid by them to the defendant collector as had been illegally collected. Their right to a refund of the amount claimed is clear under Maass v. Higgins, 312 U.S. 443, 61 S.Ct. 631, 85 L.Ed. 940, 132 A.L.R. 1035, and was not disputed; but the defendant set up in defense an additional estate tax liability (greater than the alleged overpayment) based on the failure to include in the decedent’s gross estate the value of certain property which he had transferred in trust in 1934 and 1935. Although assessment of an additional estate tax was barred by the statute of limitations, the plaintiffs do not contend that they are entitled to a refund unless the tax legally due was overpaid. See Lewis v. Reynolds, 284 U.S. 281, 52 S.Ct. 145, 76 L.Ed. 293. Hence the question presented at the trial, and renewed here, is whether the value of the trust property should have been included in the gross estate. The district court held it includible under § 811(d) of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 811(d). Accordingly judgment was given for the defendant, and the plaintiffs have appealed. In December 1934 the decedent set up two trusts: one for the family of his elder son, B. Brewster'Jennings, the other for the family of his younger son, Lawrence K. Jennings. The trust instruments were identical, except for the names of the beneficiaries and the property transferred. In discussing the terms of the trusts it will suffice to refer to the one set up for the elder son’s family. The trust was irrevocable and in so far as legally permissible its provisions were to be interpreted and enforced according to Connecticut law. It reserved no beneficial interest to the settlor. He and his two sons were named as the trustees; in casé a vacancy should occur provision was made for the appointment of a successor" }, { "docid": "3897753", "title": "", "text": "CHASE, Circuit Judge. The plaintiffs, executors of the Estate of Dennis A. Blakeslee, paid to the defendant, Collector of Internal Revenue for the District of Connecticut, an estate tax computed in part by including in the gross estate the value of property which the decedent either had irrevocably transferred in trust on January 7, 1929 or had subsequently so transferred to the trust at different times before he died on April 5, 1933. A claim for refund was duly made and denied and this suit followed. Trial was by the court after the waiver of a jury. The principal issue on this appeal is whether the evidence supports the findings on which a judgment for the plaintiffs was entered. The inclusion of a part of the value of the trust property in the gross estate was first put by the Commissioner on the ground that it was required by Sec. 302 (c) of the Revenue Act of 1926, 26 U.S. C.A. Int.Rev.Acts, because the property was transferred to the trust to take effect in possession or enjoyment at or after his death but this ground was later abandoned and the inclusion defended as one of property transferred in trust in contemplation of death. The pertinent provisions of the trust instrument were that it should be irrevocable; that the trust should terminate at the end of fifteen years or upon the death of the survivor of the settlor and his wife if such death occurred within the fifteen year period; that upon termination the corpus should be distributed among the settlor’s six children whose interests were stated to be vested as of the date of the trust instrument; that the trustees should keep the property invested and out of the net income pay to the settlor each year the sum of $75,000 and, in the sole discretion of the trustees, such additional part of the net income as they might decide to pay over to him and which should not in any event exceed in the whole ninety per cent of such net income; that the remainder of the net income" }, { "docid": "23105692", "title": "", "text": "paid because it bad been included. On November 24, 1939, an amended claim for the same refund was filed and on January 29, 1940, the Commissioner rejected both the original and the amended claim in full. The executors then brought suit against this defendant, who is the Collector of Internal Revenue for the Third District of New York, to recover the refund claimed. After the suit had been brought, the Supreme Court decided Maass v. Higgins, 312 U.S. 443, 61 S.Ct. 631, 85 L.Ed. 940, 132 A.L.R. 1035, on March 3, 1941. That decision left no defense to the suit, and in accordance with a stipulation of the parties it was dismissed with prejudice after the plaintiffs had been paid the amount of their claimed overpayment of the estate taxes with interest. The attorneys who filed the refund claim for the executors also brought the above mentioned suit for them and carried it to the conclusion stated. They charged, and were paid for their services after the completion of that work 818,346.18. The executors paid them on August 21, 1942, and on September 14, 1942, filed another claim for the refund of $7,668.69 with interest. This claim was based on a diminution of the gross estate in computing the net estate for tax purposes by deducting the amount of the payment to the attorneys as administration expenses deductible pursuant to § 303(a) (1) (B), as amended, 26 U.S.C.A. Int.Rev.Acts, page 232, and T. R. 80, Art. 34. The refund claim was rejected, however, on November 16, 1942, on the ground that the dismissal of the first suit with prejudice after the payment to the plaintiffs of the entire refund claimed was res adjudicata as to all overpayments of estate taxes and barred the allowance of the additional claim for refund. The plaintiffs brought this suit on November 23, 1942, to recover the claimed refund. A motion by the defendant to dismiss the complaint on the ground that it failed to state a cause of action was denied by the district judge then sitting in the motion part. The case was" }, { "docid": "9457220", "title": "", "text": "the total proceeds as the premiums paid after January 10, 1941, bore to the total premiums paid, was included in the gross estate of Nathan Shure, deceased, and was subjected to Federal estate tax. This increased the Federal estate tax $76,517.88 which appellants attempted to recover by this suit in the District Court. (This premium payment test was repealed by the Revenue Act of 1954, 26 U.S.C.A. § 2042.) The appellants claim this decision of the District Court should be reversed for two reasons: (1) That since decedent had no incidents of ownership in the policies, the payment of premiums by the trust out of the income from the trust funds was not an indirect payment of the premiums by the Insured after January 10, 1941, under Section 811(g)(2)(A) of the Internal Revenue Code of 1939, as amended. 26 U.S.C.A. § 811(g)(2)(A). (2) That if this Section is applicable and so construed in the instant case, it is retroactive in its application and violates the Fifth Amendment to the Constitution. In determining the issues, this Court must first look to the statutes and regulations involved. Internal Revenue Code of 1939. “§ 811. Gross estate “The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, except real property situated outside of the United States— ****** “(g) [as amended by Sec. 404(a) of the Revenue Act of 1942. 26 U.S.C.A. 1948 ed. § 811(g).] Proceeds of life insurance “(1) Receivable by the executor. To the extent of the amount receivable by the executor as insurance under policies upon the life of the decedent. “(2) Receivable by other beneficiaries. To the extent of the amount receivable by all other beneficiaries as insurance under policies upon the life of the decedent (A) purchased with premiums, or other consideration, paid directly or indirectly by the decedent, in proportion that the amount so paid by the decedent bears to the total premiums paid for the insurance, or (B) with respect to which the" }, { "docid": "14336551", "title": "", "text": "GRIM, District Judge. The government has assessed additional estate tax against the plaintiff, which has been paid. In this action plaintiff is attempting to recover the amount of the additional estate tax assessed against it. The decedent died on July 25, 1950. During the year after death some securities owned by the estate increased in value. Others decreased in value and others did not change. The aggregate amount of the increases during that period exceeded the amount of the decreases by some $40,000. In determining values for estate tax purposes the Internal Revenue Code grants estates an option to have their assets valued as of the date one year after death if they so elect. This is termed the optional valuation date. The option can be exercised only if certain conditions are met: if the tax return is filed on time (within 15 months after death) and if the estate elects on the return to have the assets valued as of the optional valuation date. Once properly made, the election cannot be revoked after the expiration of the time for filing the return. When the election is made, all the assets of the estate must be valued as of the optional valuation date. Estates are not given the option to pick and choose one date or the other (date of death or one year after death) for each asset individually. In this case the estate tax return was filed on August 27, 1951, well within 15 months after death. The return form included this question: “Does the executor elect to have the gross estate of this decedent valued in accordance with values as of a date or dates subsequent to the decedent’s death as authorized by section 811 (j) of the Internal Revenue Code? (Answer ‘Yes’ or ‘No’)” The question was answered yes on the return. Since the aggregate value of the assets of the estate increased in value during the year after death, from an estate tax point of view the proper answer to the question should have been no instead of yes. It is because of the mistake" }, { "docid": "14336563", "title": "", "text": "upon shrinkage in the value of estates during the year following death. Congress enacted it in the light of the fact that, due to such shrinkages, many estates were almost obliterated by the necessity of paying a tax on the value of the assets at the date of decedent’s death.” Maass v. Higgins, 1941, 312 U.S. 443, 446, 61 S.Ct. 631, 632, 85 L.Ed. 940. . The Revenue Code, 26 U.S.C.A. (I.R.C. 1939) § 811(:') provides: “(j) Optional valuation. If the executor so elects upon his return (if filed within the time prescribed by law or prescribed by the Commissioner in pursuance of law), the value of the gross estate shall be determined by valuing all the property included therein on the date of decedent’s death as of the date one year after the decedent’s death * * * ” Treasury Regulation 105, Section 81.11(1) provides: “The election of the executor to have the gross estate valued in accordance with the method authorized by section 811(5), in order to be effective, must be made on the return filed within 15 months from the decedent’s death or within the period of any extension of time granted * * * In no case may the election be exercised, or a previous election changed, after the expiration of the time for the filing of the return.” . When the optional date is selected, all assets disposed of within a year after death must be valued as of the date of disposal. ' • . The executor has died and has been succeeded by an administrator d.b.n.c.t.a. . The current tax return form dated May, 1955, has been changed somewhat from the older form. It now presents the problem to the taxpayer thus: “An election to have the gross estate of the decedent valued as of the alternate date or dates is made by entering a check mark in the box set forth below. “ □ The executor elects to have the gross estate * * * valued * * * as of a date or dates subsequent to the decedent’s death * *" }, { "docid": "17658562", "title": "", "text": "SWAIM, Circuit Judge. This case involves the allowance by the District Court of attorneys’ fees and other expenses incurred in the prosecution by plaintiffs of a claim for refund of estate taxes which were illegally collected. Plaintiff Edwin J. Bohnen, as executor of the estate of his mother, Mary A. Bohnen, on October 14, 1945, filed a claim for the refund of estate taxes on the ground that the Commissioner of Internal Revenue had erroneously included in the decedent’s gross estate the proceeds of a single premium life insurance policy purchased in 1935 on the decedent’s life. At the time of her death in 1942 this policy had a value of $72,094.81. The Commissioner included this amount in the decedent’s gross estate, insisting that she had made a gift of the amount of the premium on the policy to her children, and that this was therefore a “transfer * * * intended to take effect in possession or enjoyment at or after [decedent’s] death” within the meaning of Section 811(c) of the Internal Revenue Code of 1939. 26 U.S.C.A. § 811 (1948). On this theory the Commissioner had charged and collected estate taxes, principal and interest in the amount of $26,954.38. In the claim for a refund the executor contended that the decedent in 1935 made an absolute gift to her children of the premium on the policy; that thereafter decedent had no interest whatever in the policy, her children having collected all dividends on the policy for their own use and benefit; and that, therefore, the proceeds from the policy were not a part of the decedent’s gross estate. The Commissioner by letter to the executor dated March 3, 1947, reported that the claim for refund was rejected “in its entirety.” Plaintiff Edwin J. Bohnen, as executor of his mother’s estate and individually with the other heirs, then filed an action in the District Court for a refund of the alleged overcharge. In this complaint plaintiffs prayed for a judgment against the defendant “for the refund of the amount of tax resulting from the deduction from the gross estate" }, { "docid": "19934993", "title": "", "text": "taken pursuant to the requirements of section 811(g) of the Internal Revenue Code of 1939, 26 U.S.C. (I.R.C. 1939) § 811(g) (1952 Ed.), on the ground that Goodnow had retained certain incidents of ownership in the policies. The trustees received the net proceeds of the insurance policies and, after reimbursing Goodnow’s executors for the proportionate share of estate taxes allocable to the insurance proceeds, credited the principal of the trust with the balance of $156,806.59. This amount subsequently increased in value to $224,035.17 by the time of Mrs. Goodnow’s death in December of 1954. The Commissioner of Internal Revenue determined, after the death of Mrs. Goodnow, that the entire value of the trust corpus as of the time of her death was also includible in her gross estate. It was his position, as set forth in a 90-day letter dated February 24, 1959, that she should be regarded as the real settlor of the insurance trust and, since the trust instrument provided her with a contingent life estate in the income therefrom, she had, in effect, made an inter vivos transfer of property with a retained life interest within the meaning of section 2036(a)(1) of the 1954 Code, supra. The resulting deficiency, plus interest, was consequently assessed and paid by plaintiffs in their capacity as Mrs. Good-now’s executors. A timely claim for refund was filed, rejected, and this suit followed. The primary issue underlying this dispute is readily apparent and may be simply stated. That is to say, we are called upon to determine if, in the circumstances disclosed above, the corpus of the inter vivos trust is properly includi-ble in Mrs. Goodnow’s gross estate as a transfer of property with a retained income interest for life within the meaning of section 2036 (a) (1). To justify the inclusion of this property in decedent’s estate, it must clearly appear that the two requirements of that section have been complied with. Thus, there must have been a transfer of property by Mrs. Good-now and a retention for life (either vested or contingent) of the income from that property by her. Simple" }, { "docid": "14336562", "title": "", "text": "followed by the Third Circuit in the Kehoe-Berge case, supra, is applicable to this case: “Petitioner urges that this result will produce a hardship here. It stresses the fact that it had no actual knowledge of the new opportunity afforded it * * * and that equitable considerations should therefore govern. That may be the basis for an appeal to Congress in amelioration of the strictness of that section. But it is no ground for relief by the courts from the rigors of the statutory choice which Congress has provided.” While the purpose of the law permitting an optional valuation was to benefit taxpayers and not to trap the unwary into paying higher estate taxes, it is my opinion that in the present case the estate must be held to the election which it has made. Judgment will be entered in favor of the defendant. This opinion will constitute the findings of fact and conclusions of law in the case. . “ * * * The purpose of [this] was to mitigate the hardship consequent upon shrinkage in the value of estates during the year following death. Congress enacted it in the light of the fact that, due to such shrinkages, many estates were almost obliterated by the necessity of paying a tax on the value of the assets at the date of decedent’s death.” Maass v. Higgins, 1941, 312 U.S. 443, 446, 61 S.Ct. 631, 632, 85 L.Ed. 940. . The Revenue Code, 26 U.S.C.A. (I.R.C. 1939) § 811(:') provides: “(j) Optional valuation. If the executor so elects upon his return (if filed within the time prescribed by law or prescribed by the Commissioner in pursuance of law), the value of the gross estate shall be determined by valuing all the property included therein on the date of decedent’s death as of the date one year after the decedent’s death * * * ” Treasury Regulation 105, Section 81.11(1) provides: “The election of the executor to have the gross estate valued in accordance with the method authorized by section 811(5), in order to be effective, must be made on" }, { "docid": "17234039", "title": "", "text": "to the requirements of section 811(g) of the Internal Revenue Code of 1939, 26 U.S.C. (I.R.C.1939) § 811(g) (1952 Ed.), on the ground that Goodnow had retained certain incidents of ownership in the policies. The trustees received the net proceeds of the insurance policies and, after reimbursing Goodnow’s executors for the proportionate share of estate taxes allocable to the insurance proceeds, credited the principal of the trust with the balance of $156,-806.59. This amount subsequently increased in value to $224,035.17 by the time of Mrs. Goodnow’s death in December of 1954. The Commissioner of Internal Revenue determined, after the death of Mrs. Goodnow, that the entire value of the trust corpus as of the time of her death was also includible in her gross estate. It was his position, as set forth in a 90-day letter dated February 24, 1959, that she should be regarded as the real settlor of the insurance trust and, since the trust instrument provided her with a contingent life estate in the income therefrom, she had, in effect, made an inter vivos transfer of property with a retained life interest within the meaning of section 2036(a) (1) of the 1954 Code, supra. The resulting deficiency, plus interest, was consequently assessed and paid by plaintiffs in their capacity as Mrs. Goodnow’s executors. A timely claim for refund was filed, rejected, and this suit followed. The primary issue underlying this dispute is readily apparent and may be simply stated. That is to say, we are called upon to determine if, in the circumstances disclosed above, the corpus of the inter vivos trust is properly includible in Mrs. Goodnow’s gross estate as a transfer of property with a retained income interest for life within the meaning of section 2036(a) (1). To justify the inclusion of this property in decedent’s estate, it must clearly appear that the two requirements of that section have been complied with. Thus, there must have been a transfer of property by Mrs. Goodnow and a retention for life (either vested or contingent) of the income from that property by her. Simple as the issue" }, { "docid": "3654219", "title": "", "text": "return in which they elected, in accordance with Section 202(a) of the Revenue Act of 1935, to have the property of the estate valued for the purposes of the estate tax as of the “optional valuation date” rather than as of the date of the decedent’s death. Section 202(a) of the Revenue Act of 1935 amends Section 302 of the Revenue Act of 1926, 44 Stat. 70, 26 U.S.C.A. § 411, so as to provide for such an election in the following manner: “If the executor so elects upon his return * * * the value of the grbss estate shall be determined by valuing all the property included therein on the date of the decedent’s death as of the date one year after the decedent’s death, except that (1) property included in the gross estate on the date of death, and, within one year after the decedent’s death, distributed by the executor * * * or sold, exchanged, or otherwise disposed of, shall be included at its value as of the time of such distribution, sale, exchange, or other disposition, whichever first occurs, instead of its value as of the date one year after the decedent’s death * * * .” The obvious purpose of the section was to afford estates some relief from the hardships that might be imposed upon them if the estate tax had to be computed exclusively upon the basis of values existing on the date of the decedent’s death. The Committee’s reports show that Congress had in mind the situation faced by an executor who took office in a time of rapidly falling markets. In such situations, some executors found that their estates soon had diminished to an amount barely sufficient to pay an estate tax based upon values which had existed only at the time of their decedent’s death. This possible hardship the section sought to alleviate. In this action the executors seek to recover from the Collector the amount which they paid under protest as estate tax upon the income received by the estate during the interim between the date of their" }, { "docid": "4735140", "title": "", "text": "18, 1944, Elizabeth Y. Gallaudet was appointed by the remaining trustees to fill the vacancy and she sérved as a trustee until her death on January 1, 1945. 8. Said Howard M. Whiting, as executor of the estate of Elizabeth Y. Gallaudet, duly filed a federal estate tax return for said estate within the time allowed by law, and on or about April 1, 1946, he paid the amount of tax shown thereon, namely, $108,975.49. 9. Subsequently, the Commissioner of Internal Revenue determined that the corpus of the trust set up by the decedent as alleged in Paragraph 4 hereof, as of the date of decedent’s death should be included in the decedent’s gross estate for federal estate tax purposes, as a transfer falling within the provisions of Sections 811(c) and 811(d) of the Internal Revenue Code. 10. As a result of this and other adjustments made by the Commissioner of Internal Revenue, a deficiency in federal estate taxes of $77,017.12 was assessed against the estate and was paid by the plaintiff on February 18, 1949, together with $13,308.14 interest thereon, to the then Collector of Internal Revenue for the District of Connecticut, John J. Fitzpatrick. 11. On or about September 20, 1949, the plaintiff filed with the then Collector of Internal Revenue for the District of Connecticut, John J. Fitzpatrick, a claim for refund of said federal estate tax deficiency paid by her, and on or about November 4, 1949, the plaintiff filed with the then Collector of Internal Revenue for the District of Connecticut an amended claim for refund of said federal estate tax deficiency paid by her. A true and correct copy of said amended claim for refund, omitting the exhibits annexed thereto for the reason that they are already annexed to the complaint as Exhibits A and B, is annexed to the complaint, marked Exhibit C, and by reference made a part hereof. 12. Subsequently, the Commissioner of Internal Revenue determined that the value of the voting trust certificates for all of the stock of The Alden M. Young Company included in the decedent’s estate by" }, { "docid": "5321607", "title": "", "text": "the statute places in the gross estate only property transferred by the decedent, bases the Government’s claim that the valuation of the gross estate should include all income received by the trust prior to the decedent’s death on the theory that the property transferred to the trust in 1936 included not only the ownership of the 83% shares of stock but also a separate property right to receive the income on the stock. It is argued that the value of this property right to receive income is measured by the income accumulated in the trust prior to the decedent’s death. The same theory advanced by the Commissioner in this case was rejected by the Supreme Court in Maass v. Higgins, 312 U.S. 443, 61 S.Ct. 631, 85 L.Ed. 940. The Maass case involved two estates where the executors had elected to have the gross estates valued as of one year after the decedents’ deaths, pursuant to 26 U.S.C.A. § 811 (j). During the year after the décedents’ deaths the executors had collected interest and dividends on 'bonds and stocks belonging to the estates. The Commissioner determined tax deficiencies against the estates for failures to include these collections as part of the gross estates. A Treasury regulation, then being enforced, required the return and inclusion of such income as a part of the gross estate. The Supreme Court, while recognizing that a bond embodies two promises to pay — one to pay the principal at maturity and the other to pay interest periodically — and while recognizing that the income factor affects the value of a security, said, 312 U.S. at page 448, 61 S.Ct. at page 633: “But these elements are not separately valued in appraising the worth of the .asset at any given time.” The Supreme Court there, 312 U.S. at page 447, 61 S.Ct. at page 633, agreed with the taxpayer: “ * * * that the Government’s position is unreal and artificial; that it does not comport either with economic theory or business practice; and that the regulation is an unwarranted extension of the plain meaning of" }, { "docid": "10358414", "title": "", "text": "for the residuary charitable trust, even if no deduction is allowed, is only 23% (100-77%) of the amount which would be available if the deduction were allowed. The Government urges that the income produced by the estate after the death of the decedent is not, for estate tax purposes, a part of the gross estate. It cites Bull v. United States, 295 U.S. 247, 55 S.Ct. 695, 79 L.Ed. 1421 to the effect that such income cannot be subjected to the estate tax, and Maass v. Higgins, 312 U.S. 443, 61 S.Ct. 631, 85 L.Ed. 940 holding that this is so even where the executors elect, under section 811 (j) of the Internal Revenue Code of 1939, 26 U.S.C. § 811 (j), to use the optional valuation date of one year after the testator’s death. Hence, the Government says, since the post mortem income is not a part of the gross estate, and since the charitable deduction is, according to sec. 812(d) of the Internal Revenue Code of 1939, 26 U.S.C. (1952 ed.) § 812(d), to be a deduction from the gross estate, it would be illogical to allow a deduction from the gross estate of assets not included in it, and which would not be taxed as a part of it even if they went to a private devisee. The Government further urges that, from a practical standpoint, to allow a charitable deduction where it cannot be determined at the time of the decedent’s death would render any computation of the federal estate tax almost impossible. It cites the instant case in which when the estate tax return was made, no charitable deduction for the residuary gift was claimed, since there was no residue; when the first refund claim was filed, as of May 31, 1952, a charitable deduction of $95,436.93 was asserted; presently, because of the August 31, 1952 transfer of post mortem income to principal, a charitable deduction of $1,039,040.78 is asserted. The Government says that this process could go on indefinitely, so long as there were undistributed assets of the estate which might earn income. It" }, { "docid": "3189130", "title": "", "text": "thought had been retained by her under the terms of the trust agreement. The Internal Revenue Service denied the exclusions, stating: “[I]n view of the absolute discretionary power vested in the Trustees, it is considered that you did not reserve a life estate in the trust, and the amount of the income that may be paid to you by the trustees is not susceptible of an accurate determination. Accordingly, no deduction is allowed for the life estate claimed.” As a result, additional gift tax was paid by Mrs. Skinner in 1938. During her lifetime, Mrs. Skinner received all income from the trust. She died on January- 12, 1953, leaving surviving her her husband, two children, her brother and her mother. Her executors filed an estate tax return which excluded from the decedent’s gross estate the value of the trust corpus. The Commissioner held that the corpus was includible in Mrs. Skinner’s taxable estate, allowing the estate, however, a credit for the gift tax paid by her in 1938. The executors paid the resulting tax deficiency and filed a claim for refund. The claim was rejected by the Commissioner and the executors then filed this suit in the court below to recover the amounts so paid. The court concluded that the Commissioner’s determination was correct, 197 F.Supp. 726, and the appeal at bar followed. The decision of the court was rested primarily on the conclusions expressed by us in McNichol’s Estate v. Commissioner, 3 Cir., 265 F.2d 667 (1959). Cf. In re Uhl’s Estate, 241 F.2d 867 (7 Cir. 1957). In McNichol’s case the decedent-settlor between 1939 and 1942 executed general warranty deeds to income-producing real estate for the benefit of his children. The deeds reserved no interest in the property to the decedent. However, there was a contemporaneous oral agreement between him and his children whereby he was to receive the income from the property until his death. Because of this oral agreement the Commissioner determined that the decedent had retained sufficient interest to sweep the property into his gross estate under Section 811(c) (1) (B) (i) of the Internal" }, { "docid": "23105691", "title": "", "text": "CHASE, Circuit Judge. The plaintiffs are executors of the will of Alfred W. Erickson, a resident of the City of New York who died November 2, 1936. They duly filed an estate tax returp and then elected, pursuant to the option provided by § 302(j) of the Revenue Act of 1926, as added by amendment by § 202 (a) of the Revenue Act of 1935, 26 U.S. C.A. Int.Rev.Acts, page 231, to have the value of the gross estate determined by a valuation as of one year after the date of decedent's death. Upon audit of the return, the Commissioner determined a deficiency by adding to the gross estate as reported the amount of the estate’s income during the year following the decedent’s death. The estate tax as thus determined was paid in 1939, the last payment being made on September 29th. The executors contended through their attorneys that this income was not lawfully includable in the gross estate and filed a claim on October 24, 1939, for the refund of the taxes assessed and paid because it bad been included. On November 24, 1939, an amended claim for the same refund was filed and on January 29, 1940, the Commissioner rejected both the original and the amended claim in full. The executors then brought suit against this defendant, who is the Collector of Internal Revenue for the Third District of New York, to recover the refund claimed. After the suit had been brought, the Supreme Court decided Maass v. Higgins, 312 U.S. 443, 61 S.Ct. 631, 85 L.Ed. 940, 132 A.L.R. 1035, on March 3, 1941. That decision left no defense to the suit, and in accordance with a stipulation of the parties it was dismissed with prejudice after the plaintiffs had been paid the amount of their claimed overpayment of the estate taxes with interest. The attorneys who filed the refund claim for the executors also brought the above mentioned suit for them and carried it to the conclusion stated. They charged, and were paid for their services after the completion of that work 818,346.18. The executors paid" }, { "docid": "10433866", "title": "", "text": "CHASE, Circuit Judge. These petitions by the Commissioner and by the executors of the will of Lester Hofheimer both present related issues as to the includibility in the gross estate of the decedent under § 302(d) of the Revenue Act of 1926, as amended, 26 U.S.C.A. Int.Rev. Acts page 229 et seq. of the value, the corpus being limited to his own contribution thereto, of the life estates and that of the remainder interests in two inter vivos trusts, one of which was created by the decedent and his brother and one by the decedent alone. He was a resident of the City of New York when he died on November 30, 1936, at the age of fifty-six. His executors elected to have the estate valued for tax purposes as of one year following his death as they might do under § 302(j) of the above statute as amplified by § 202(a) of the Revenue Act of 1935, 26 U.S.C.A. Int.Rev.Acts, page 805. They omitted from the estate tax return which they filed all income received during the year after decedent’s death, but the Commissioner included it and determined a deficiency accordingly. While proceedings for the review of that determination were pending in the Tax Court the case of Maass v. Higgins, 312 U.S. 443, 61 S.Ct. 631, 85 L.Ed. 940, 132 A.L.R. 1035, was decided and left the Commissioner without support in law for his determination. He then, however, amended his answer in those proceedings and raised for the first time the issues now before us. The Tax Court held that the value of each life estate was taxable but that the value of the remainder interests was not and these cross petitions to review that decision followed. 2 T.C. 773. The First Trust On October 5, 1922, the decedent and his brother Arthur each contributed one half of. the corpus of a trust they then established, with themselves and the Empire Trust Company as trustees, the net income of which was to be paid to their cousin Clara Hofheimer for life. She was born in 1887. At her" }, { "docid": "5321606", "title": "", "text": "income going to his widow during her life and as to the distribution of the principal to their children upon her death. Without attempting a more detailed digest of the evidence, but considering the record as a whole, including both the evidence for and the evidence against the contention of the Commissioner, we cannot say that the finding of the Tax Court that the transfer was made in contemplation of death was clearly erroneous. We think the record furnishes a reasonable basis for that finding. Appeal No. 10370 The Commissioner insists that the Tax Court erred in not including in the decedent’s gross estate the income, together with property purchased by such income, which accrued in the trust prior to the decedent’s death.. When Gidwitz died the total assets in the trust had a value of $341,102.02. The original shares of stock transferred to the trust had a valuation of $140,610. The difference of $200,492.02 represented the value of accrued income and property purchased for the trust with accrued income. The Commissioner, while admitting that the statute places in the gross estate only property transferred by the decedent, bases the Government’s claim that the valuation of the gross estate should include all income received by the trust prior to the decedent’s death on the theory that the property transferred to the trust in 1936 included not only the ownership of the 83% shares of stock but also a separate property right to receive the income on the stock. It is argued that the value of this property right to receive income is measured by the income accumulated in the trust prior to the decedent’s death. The same theory advanced by the Commissioner in this case was rejected by the Supreme Court in Maass v. Higgins, 312 U.S. 443, 61 S.Ct. 631, 85 L.Ed. 940. The Maass case involved two estates where the executors had elected to have the gross estates valued as of one year after the decedents’ deaths, pursuant to 26 U.S.C.A. § 811 (j). During the year after the décedents’ deaths the executors had collected interest and dividends" }, { "docid": "16871239", "title": "", "text": "MAGRUDER, Chief Judge. Appellants are executors of the estate of Mary A. van Beuren, a resident of Rhode Island, who died in 1951. Upon examination of the estate tax return filed by the executors, the Commissioner assessed deficiencies in estate tax, one of which was based upon his determination that there should have been included in decedent’s gross estate, pursuant to § 811(d)(2) of the Internal Revenue Code of 1939, the value at the date of her death of the income to be derived from a certain inter vivos trust established by decedent on April 19, 1932. The executors paid the assessed deficiencies and filed claims for refund, which the Commissioner denied on March 7, 1957. Thereafter, the executors duly filed the present complaint in the United States District Court for the District of Rhode Island seeking recovery of the sums asserted to be due in the claims for refund. Named as defendants were the former Acting Collector of Internal Revenue and the District Director of Internal Revenue. As to certain items, the Commissioner conceded that the plaintiffs were entitled to a refund; and so the district judge gave judgment for the plaintiffs in the sum of $68,235.39, which was the total of the conceded items. But the Commissioner maintained the correctness of his determination as to the inclusion of the trust income, the one issue now in dispute, and the district judge, agreeing with the Commissioner, refused to give plaintiffs judgment for the greater amount claimed in their complaint, and entered a judgment dismissing the complaint “as to any relief in excess of the sum of $68,235.39, together with interest, as provided by law”. The plaintiff executors then took the present appeal from the aforesaid judgment. In enacting § 811(d)(2), the Congress was concerned to prevent an avoidance of the estate tax by the device of creating an inter vivos trust that purported to give away an interest, but where the grantor reserved in his own hands certain threads of control which rendered the gift in effect ambulatory until the date of the grantor’s death. Section 811(d)(2) is sweeping," } ]

[ { "docid": "21552799", "title": "", "text": "POSNER, Circuit Judge. This appeal requires us to consider the meaning of the term “employee welfare benefit plan” in ERISA. The statutory definition is “any plan, fund, or program ... established or maintained by an employer or by an employee organization ... for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment [etc.].” 29 U.S.C. § 1002(1)(A). The plaintiff, an employee of United Community Center in Wisconsin, was enrolled in a medical insurance plan offered through her employer by a Blue Cross-Blue Shield subsidiary called Compcare. She brought a suit against Blue Cross-Blue Shield in a Wisconsin state court, charging that Compcare had both broken its contract with her, and acted in bad faith, in refusing to reimburse her for medical expenses incurred in connection with an unusual ailment that she had contracted. Why she sued Blue Cross-Blue Shield instead of Compcare, a corporation in its own right, is unclear; in any event the parties agreed to substitute Compcare for Blue Cross-Blue Shield as the defendant. Compcare removed the case to the district court on the ground that the plan in which the plaintiff was enrolled was an employee welfare benefit plan within the meaning of ERISA. The parties agree, as they must, that a suit for benefits allegedly due under an ERISA plan arises under ERISA, and therefore under federal law, and hence is removable to federal district court. 29 U.S.C. § 1132(a)(1)(B); H.R. Conf.Rep. No. 1280, 93d Cong., 2d Sess. 326-27 (1974), U.S.Code Cong. & Admin. News 1974, 4639, 6106-07; Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 68, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Reiherzer v. Shannon, 581 F.2d 1266, 1269-72 (7th Cir.1978). They also agree that if the plaintiffs claim arises under ERISA, her state breach of contract claim is preempted. See 29 U.S.C. § 1144(a). It makes no difference that the defendant is the insurer rather than the employer. See Pilot Life Ins. Co. v. Dedeaux, 481" } ]

[ { "docid": "22627466", "title": "", "text": "eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer or members of such organization, or whose beneficiaries may be eligible to receive any such benefit. ERISA § 3(7), 29 U.S.C. § 1002(7). The term “employee” means any individual employed by an employer. ERISA § 3(6), 29 U.S.C. § 1002(6). . The term “beneficiary” means a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder. ERISA § 3(8), 29 U.S.C. § 1002(8). . UIT, even though it is not an employee benefit welfare plan, may nonetheless be subject to ERISA’s fiduciary responsibilities if it is a fiduciary to employee benefit plans established or maintained by other entities. See Eversole v. Metropolitan Life Insurance Co., 500 F.Supp. 1162, 1170 (C.D. Cal. 1980). UIT is not a defendant in this case; the trustees of UIT are, however. . Department of Labor regulations recognize that an employer may be involved in a plan, fund, or program without establishing or maintaining it. See 29 C.F.R. § 2510.3-1 (j). According to the regulation the term “employee welfare benefit plan” does not include group insurance if the sole functions of the employer are, without endorsing the program, to permit an insurer to publicize a program to employees, to collect premiums through payroll deductions, and to remit the premiums to the insurer, and the employer does not contribute premiums to the insurer or make a profit from the program. See also Hamberlin v. VIP Insurance Trust, 434 F.Supp. 1196 (D. Ariz. 1977) (policies sold directly to individual employees; employers had no voice in management and contributed no funds). . The Secretary filed with the district court, by affidavit, copies of “participation agreements” and “subscriptions to trust” that it stated had been seized from appellees’ offices pursuant to a search warrant. Though not formally in evidence the district court considered them in acting on the motion to dismiss. Appellees have not objected to the manner these documents were presented to the district court, or" }, { "docid": "14435492", "title": "", "text": "plans that an ERISA preemption defense to a state-law claim provides a sufficient basis for removal of the lawsuit to federal court, notwithstanding the traditional limitation imposed by the well-pleaded complaint rule. Id. at 64-67, 107 S.Ct. at 1546-48. Thus, if plaintiffs’ state-law claims “relate to” an ERISA plan within the meaning of ERISA’s preemption provision, 29 U.S.C.A. § 1144(a), these claims are preempted by ERISA and converted to federal questions, at least for the purposes of removal jurisdiction. Id. at 60, 66, 107 S.Ct. at 1544, 1547-48. Removal would be proper here: (1) if the Metropolitan Life plan is an “employee benefit plan” within the meaning of ERISA, and plaintiffs’ state-law claims “relate to” the life insurance plan; or (2) if the cafeteria plan is an “employee benefit plan” within the meaning of ERISA, and plaintiffs’ state-law claims “relate to” the cafeteria plan. A. Existence of an ERISA Plan The plaintiffs recognize that the AFC cafeteria plan is an employee welfare benefit plan as defined by ERISA, 29 U.S.C.A. § 1002(1), and that they are participants in that plan. They disagree with defendants, however, that the Metropolitan Life plan is also an ERISA plan. Section 1002(1) defines an “employee welfare benefit plan” as “any plan, fund, or program ... established or maintained by an employer ... to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise ... benefits in the event of ... death.” Plaintiffs contend that the life insurance plan falls within the “safe-harbor” regulation promulgated by the Department of Labor, which excludes from ERISA’s scope employee benefit programs that entail little employer involvement. The “safe-harbor” regulation provides:. “[T]he terms ‘employee welfare benefit plan’ and ‘welfare plan’ shall not include a group or group-type insurance program offered by an insurer to employees or members of an employee organization, under which (1) No contributions are made by an employer or employee organization; (2) Participation [in] the program is completely voluntary for employees or members; (3) The sole" }, { "docid": "16174565", "title": "", "text": "creating a “safe harbor” from ERISA coverage. See 29 C.F.R. § 2510.3-Kj). A group insurance plan offered to employees is within the safe harbor regulation established by the Secretary of Labor and is exempt from ERISA coverage when: (1) No contributions are made by an employer or employee organization; (2) Participation in the program is completely voluntary for employees or members; (3) The sole functions of the employer or employee organization with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer; and (4) The employer or employee organization receives no consideration in the form of cash or otherwise in connection with the program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deductions or dues checkoffs. Id.; see also Qualls, 22 F.3d at 843. It is well settled that when an employer provides a group insurance plan to its employees and satisfies all four requirements of the safe harbor regulation, the employer’s mere purchase of insurance does not, in and of itself, create an employee welfare benefit plan under ERISA. See Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988) (citing Donovan v. Dillingham, 688 F.2d 1367, 1375 (11th Cir.1982) (en banc)). Some tension may exist in our decisions, however, as to whether an employer’s failure to satisfy one of the four requirements of the safe harbor regulation is conclusive to determining whether a group insurance plan is an employee welfare benefit plan subject to ERISA coverage. We, therefore, begin our analysis by reviewing our case law on this issue. A. We first analyzed the Secretary of Labor’s safe harbor regulation and the issue of ERISA preemption in Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489 (9th Cir.1988). In Kanne, the insured prevailed against its insurer at trial on three state law causes of action and was awarded damages. See id. at 491. The issue of whether the insured’s" }, { "docid": "2043481", "title": "", "text": "employees or members of an employee organization, under which (1) No contributions are made by an employer or employee organization; (2) Participation [in] the program is completely voluntary for employees or members; (3) The sole functions of the employer or employee organization with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer. As this court noted in Kanne, behavior inconsistent with any one of the above criteria would constitute evidence of the establishment of a plan. 867 F.2d at 492. Cf. Otto v. Variable Annuity Life Ins. Co., 814 F.2d 1127, 1135 (7th Cir.1986) (where employer’s sole function was to present different insurers’ plans to employees and collect and remit premiums, employer did not “establish or maintain” plan), cert. denied, — U.S. -, 108 S.Ct. 2004, 100 L.Ed.2d 235 (1988). The undisputed facts are that City presented the MONY plan to its employees not on a “take it or leave it” basis, but on a “take it or take it” basis. City not only endorsed the plan, it automatically provided the plan to all its employees. Moreover, City did not simply collect premium payments from its employees and pass them on to MONY; City paid the premiums itself directly to MONY. In short, City’s behavior was inconsistent with all of the three criteria cited above. Thus, a straightforward application of 29 C.F.R. § 2510.3-l(j) to the facts of this case forces the conclusion that City did in fact “establish or maintain” an employee welfare benefit plan and, since City is a political subdivision of a state, that plan qualified as a governmental plan under 29 U.S.C. § 1002(32) and was therefore exempt from ERISA coverage pursuant to 29 U.S.C. § 1003(b)(1). Fourth, MONY’s arguments ignore the express wording of ERISA’s definition of an employee welfare benefit plan. As noted above, such plans may be “established or maintained by an employer ... through the purchase of insurance_” 29 U.S.C. § 1002(1) (emphasis added)." }, { "docid": "14435494", "title": "", "text": "functions of the employee or employee organization with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer; and (4) The employer or employee organization receives no consideration in the form of cash or otherwise in connection with the program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deductions or dues checkoffs.” 29 C.F.R. § 2510.3—1(j). In order to fit within the “safe-harbor” regulation, a plan must meet all four criteria. Memorial Hosp. System v. Northbrook Life Ins. Co., 904 F.2d 236, 241 n. 6 (5th Cir.1990); Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989). The court is of the view that the Metropolitan Life plan meets all four criteria. First, it is undisputed that AFC made no contributions to the life insurance plan; AFC employees paid the entire premium themselves. Second, participation in the life insurance plan was voluntary. Defendants appear to recognize this point in arguing that AFC employees “understood that they could benefit from participating in the AFC Plan without having to purchase Metropolitan life insurance.” Nevertheless, defendants contend that the plaintiffs themselves claim that participation in the life insurance program was not voluntary. Contrary to defendants’ contention, plaintiffs specifically allege that participation in the life insurance plan was voluntary. See Complaint ¶38. Plaintiffs claim that, despite the true facts, defendants misrepresented that participation in the life insurance plan was required in order for employees to receive the tax savings from participation in the AFC cafeteria plan. Whether the life insurance plan meets the third criterion, non-endorsement of the plan by AFC, is a close question. Defendants note that AFC publicized the life insurance program to its employees, collected premiums through payroll deductions, and remitted them to Metropolitan Life. Had AFC limited its involvement in the life insurance program to these functions, it would have" }, { "docid": "13678250", "title": "", "text": "payroll deductions, passes them on to the insurer, and performs other ministerial tasks that assist the insurer in publicizing the program, it will not be deemed to have endorsed the program under section 2510.3 — 1 (j)(3). It is only when an employer purposes [sic] to do more, and takes substantial steps in that direction that it offends the ideal of employer, neutrality. Id. at 1134 (citations omitted). Moreover, the Johnson Court held that employer endorsement vel non should be determined from the perspective of an objectively reasonable employee. Id. at 1135; see also Thompson v. American Home Assurance Co., 95 F.3d 429, 436-37 (6th Cir.1996) (adopting the Johnson Court’s approach to determining employer neutrality). Resolving all issues of factual dispute in favor of the plaintiff, see Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir.1983), the Court finds that A.E.S. did not endorse the disability insurance purchased by plaintiff. Under the facts as set forth by the plaintiff, the disability insurance policy purchased by plaintiff: (1) was purchased in an A.E.S. office; (2) was not included in A.E.S.’s Cafeteria Plan; (3) was in addition to any insurance plaintiff purchased through the Cafeteria Plan; (4) was designed, selected and administered by Howard and Capital; (5) was paid for through a payroll deduction which may or may not have been authorized by plaintiff; and (6) required plaintiff to independently obtain a claim form from American Heritage and to independently remit the same. Under this set of facts, it is clear that A.E.S. did not endorse the disability insurance purchased by plaintiff. See Lott v. Metropolitan Life Ins. Co., 849 F.Supp. 1451, 1454-55 (M.D.Ala.1993) (finding that employer did not endorse insurance plan offered separately from employer’s cafeteria plan despite the fact that employer allowed insurer to discuss life insurance plans with employees and arranged to deduct premiums from employee’s paychecks). Accordingly, the Court finds that the disability insurance purchased by plaintiff was not part of an “employee benefit welfare plan.” Therefore, the Court finds that plaintiffs claim for fraudulent inducement is not preempted by ERISA and that the Court lacks" }, { "docid": "2043480", "title": "", "text": "from its taxing authority, i.e., the money needed to pay for the plan was obtained in the same way it would have been raised had City set up a self-funded plan, with taxes. Similarly, MONY’s contention that, in the event of MONY’s failure, City would not have been responsible for providing the contracted-for benefits, while strictly true, belies the realities of politics. As the court noted in Rose, it would be unrealistic to assume that losses incurred by a plan covering public employees would not ultimately be borne, at least in part, by the taxpaying public. Rose, 828 F.2d at 918. Third, MONY’s argument ignores the criteria to be considered when determining whether an employer has “established or maintained” a plan. The Department of Labor promulgated 29 C.F.R. § 2510.3-l(j) to clarify whether, and under what circumstances, an employer’s adoption of a group insurance plan would constitute the “establishment” of a plan: [T]he terms “employee welfare benefit plan” and “welfare plan” shall not include a group or group-type insurance program offered by an insurer to employees or members of an employee organization, under which (1) No contributions are made by an employer or employee organization; (2) Participation [in] the program is completely voluntary for employees or members; (3) The sole functions of the employer or employee organization with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer. As this court noted in Kanne, behavior inconsistent with any one of the above criteria would constitute evidence of the establishment of a plan. 867 F.2d at 492. Cf. Otto v. Variable Annuity Life Ins. Co., 814 F.2d 1127, 1135 (7th Cir.1986) (where employer’s sole function was to present different insurers’ plans to employees and collect and remit premiums, employer did not “establish or maintain” plan), cert. denied, — U.S. -, 108 S.Ct. 2004, 100 L.Ed.2d 235 (1988). The undisputed facts are that City presented the MONY plan to its employees not on a “take" }, { "docid": "23016567", "title": "", "text": "fraud claims — payment of the life insurance benefit. Cf. Engelhardt, 139 F.3d at 1354. We therefore conclude that all of Butero’s claims are properly recast as claims for benefits due under any plan. That leaves only the first element to discuss — whether there is a relevant ERISA plan. The centerpiece of the plaintiffs’ argument on this point is a regulatory safe harbor from plan-ness, ’ 29 C.F.R. § 2510.3-l(j), and it is there that we start. The regulation excepts from the definition of “employee welfare benefit plan” certain “group or group-type insurance program[s]” “offered by an insurer to employees.” 29 C.F.R. § 2510.3 — l(j). For the program to qualify for the exception, four elements must be satisfied: (1) No contributions are made by an employer or employee organization; (2) Participation [in] the program is completely voluntary for employees ...; (3) The sole functions of the employer ... with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer; and (4) The employer ... receives no consideration in the form of cash or otherwise in connection with the program.... Id. There is no dispute here that elements (1), (2), and (4) are fulfilled. Element (3) is in dispute, but it is hard to see why. The regulation explicitly obliges the employer who seeks its safe harbor to refrain from any functions other than permitting the insurer to publicize the program and collecting premiums. Simply Fashion did a lot more. It picked the insurer; it decided on key terms, such as portability and the amount of coverage; it deemed certain employees ineligible to participate; it incorporated the policy terms into the self-described summary plan description for its cafeteria plan; and it retained the power to alter compensation reduction for tax purposes. So the safe harbor is barred. But that does not necessarily mean that the insurance policy is part of an ERISA plan. See, e.g., Brundage-Peterson v. Compcare Health Servs. Ins. Corp.," }, { "docid": "22088765", "title": "", "text": "(b) “Maintained by an employer” The Department of Labor has issued so-called “safe harbor” regulations distinguishing those plans “established or maintained by an employer” from those in which the employer’s role is more limited. See 29 U.S.C. § 1002(1); 29 CFR § 2510.3-10). These regulations describe the circumstances under which a group insurance plan offered by an insurer to employees will not qualify as an ERISA employee benefit plan. 29 CFR § 2510.3-l(j). Specifically, the regulations exclude those plans in which: (1) No contributions are made by the employer; (2) Employee participation is completely voluntary; (3) “The sole functions of the employer ... are, without endorsing the program, to permit the insurer to publicize the program to employees ... to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer;” and (4) The employer receives no consideration for its limited involvement in the plan. Id. Unless all four of the above requirements are met, the employer’s involvement in a group insurance plan is significant enough to constitute an “employee benefit plan” subject to ERISA. Kanne v. Connecticut General Life Insurance, 867 F.2d 489, 492 (9th Cir.1988) (state law claims against insurer preempted by ERISA where only one of the above mentioned conditions was not met; the failure of any one of the conditions “would prevent the exclusion of the insurance plan from ERISA coverage”), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989). In the case at bar, at least two of these regulatory requirements for exclusion from ERISA were not met by the Blue Cross policy. First, there were employer contributions. In fact, as Mr. Qualls concedes, the plan was fully funded by Saddleback’s contributions. Second, because coverage was free and automatic for all full-time employees, it was not “completely voluntary.” Therefore, the Blue Cross policy failed to satisfy the first two requirements for exclusion from ERISA. It follows that Saddleback’s involvement in the Blue Cross plan was sufficient to create an “employee benefit plan” subject to ERISA, and the district court was correct to hold that Mr. Qualls’s state law" }, { "docid": "14435491", "title": "", "text": "that the tax savings from the cafeteria plan would not be available to them unless they participated in Metropolitan Life’s plan. He also told the plaintiffs that the life insurance would be free to them. Plaintiffs claim that they signed up for the life insurance based on these representations. In fact, as explained above, AFC employees could have received the tax savings from participating in the cafeteria plan without purchasing life insurance. They simply would have received more take-home pay. II. DISCUSSION The question before the court is whether plaintiffs’ lawsuit has been properly removed to federal court as a case “arising under” the laws of the United States pursuant to 28 U.S.C.A. §§ 1441, 1331. Ordinarily, a cause of action arises under federal law only when the plaintiffs “well-pleaded complaint” raises a federal question. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65-67, 107 S.Ct. 1542, 1548-49, 95 L.Ed.2d 55 (1987). The Supreme Court has determined, however, that the uniform regulatory scheme established by ERISA “so completely preempt[s]” the area of employee benefit plans that an ERISA preemption defense to a state-law claim provides a sufficient basis for removal of the lawsuit to federal court, notwithstanding the traditional limitation imposed by the well-pleaded complaint rule. Id. at 64-67, 107 S.Ct. at 1546-48. Thus, if plaintiffs’ state-law claims “relate to” an ERISA plan within the meaning of ERISA’s preemption provision, 29 U.S.C.A. § 1144(a), these claims are preempted by ERISA and converted to federal questions, at least for the purposes of removal jurisdiction. Id. at 60, 66, 107 S.Ct. at 1544, 1547-48. Removal would be proper here: (1) if the Metropolitan Life plan is an “employee benefit plan” within the meaning of ERISA, and plaintiffs’ state-law claims “relate to” the life insurance plan; or (2) if the cafeteria plan is an “employee benefit plan” within the meaning of ERISA, and plaintiffs’ state-law claims “relate to” the cafeteria plan. A. Existence of an ERISA Plan The plaintiffs recognize that the AFC cafeteria plan is an employee welfare benefit plan as defined by ERISA, 29 U.S.C.A. § 1002(1), and that they" }, { "docid": "14435497", "title": "", "text": "within the meaning of the safe-harbor regulation. Determining whether the life insurance plan meets the fourth criterion, whether AFC received any consideration in connection with the life insurance program, is also a close question. AFC did not receive any compensation for payroll deduction services from the life insurance plan. However, when employees signed up for the insurance plan, AFC received tax savings from their simultaneous participation in the cafeteria plan. AFC also saved the expense of having its own managers go to its various divisions and explain the cafeteria plan; Metropolitan Life agents went to the various divisions instead at the expense of Metropolitan Life. The court is nevertheless convinced that benefit AFC received was too indirect and tenuous to conclude that the Metropolitan Life plan falls outside the safe-harbor regulation. B. Preemption ERISA’s preemption clause explicitly preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C.A. § 1144(a) (emphasis added). Because the court does not find for purposes of subject-matter jurisdiction that the life insurance plan is an ERISA plan, the court need not reach the second issue of whether plaintiffs’ state-law claims “relate to” the life insurance plan. However, because the parties agree that the cafeteria plan is an ERISA plan, the court must reach this second issue as to that plan. In general, a particular state-law claim “relates to” an ERISA plan if the state-law claim has a “connection with or reference to” an employee benefit plan. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983). A state law may be preempted even if it has only an indirect effect on benefit plans. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 149, 111 S.Ct. 478, 483, 112 L.Ed.2d 474 (1990). However, if the state-law claim affects the plan in “too tenuous, remote, or peripheral a manner,” the state claim does not “relate to” the plan. Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21. Plaintiffs claim that defendants fraudulently induced them to buy life" }, { "docid": "14435495", "title": "", "text": "plan; AFC employees paid the entire premium themselves. Second, participation in the life insurance plan was voluntary. Defendants appear to recognize this point in arguing that AFC employees “understood that they could benefit from participating in the AFC Plan without having to purchase Metropolitan life insurance.” Nevertheless, defendants contend that the plaintiffs themselves claim that participation in the life insurance program was not voluntary. Contrary to defendants’ contention, plaintiffs specifically allege that participation in the life insurance plan was voluntary. See Complaint ¶38. Plaintiffs claim that, despite the true facts, defendants misrepresented that participation in the life insurance plan was required in order for employees to receive the tax savings from participation in the AFC cafeteria plan. Whether the life insurance plan meets the third criterion, non-endorsement of the plan by AFC, is a close question. Defendants note that AFC publicized the life insurance program to its employees, collected premiums through payroll deductions, and remitted them to Metropolitan Life. Had AFC limited its involvement in the life insurance program to these functions, it would have been clear that AFC had not have endorsed the program. These functions are specifically allowed under the regulation without being considered as endorsing the program. See Brundage-Peterson v. Compcare Health Services Ins. Corp., 877 F.2d 509, 510 (7th Cir.1989) (an employer could distribute advertising brochures from insurance providers, answer questions concerning insurance, and deduct premiums from payroll and remain within safe harbor regulation); Cf. Kanne, 867 F.2d at 492 (merely advertising a group insurance plan does not establish an ERISA plan). AFC’s involvement with the life insurance program, however, went beyond these functions. Significantly, in most instances, AFC did not have its own managers explain the cafeteria plan and the Metropolitan Life plan, but rather had Metropolitan Life agents explain the two plans to AFC employees. In addition, Metropolitan Life agents enrolled AFC employees in both the cafeteria plan and the life insurance plan. Although, as stated above, this additional involvement by AFC in the Metropolitan Life plan presents a close question, the court is not con vinced that AFC endorsed the life insurance plan" }, { "docid": "14435489", "title": "", "text": "(5th Cir. Unit A 1981)); Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 492 n. 4 (9th Cir.1988) (burden on defendant to prove facts necessary to establish preemption), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989). A defendant may submit affidavits, depositions, or other evidence to support removal. Fowler, 915 F.2d at 617. For the reasons set forth below, the court concludes that plaintiffs’ motion to remand will be granted. I. BACKGROUND In 1987, AFC adopted a flexible benefits plan, or “cafeteria plan,” which provided an opportunity for eligible AFC employees to use pre-tax dollars to pay their one-half share of the applicable premium for their health benefits obtained pursuant to their employment with AFC. AFC paid the other half of the premium. By electing to participate in the cafeteria plan, employees would enjoy a tax savings because they would use pre-tax dollars, rather than after-tax dollars, to pay their one-half share of the premiums. The tax savings resulted in an increase in the employees’ take-home pay. AFC also received tax savings when its employees participated in the cafeteria plan. For those employees who participated in the plan, AFC would have to pay less in federal taxes, such as matching FICA taxes. In addition, as an aside to the cafeteria plan, AFC also gave its employees an option to use their increased take-home pay to purchase life insurance from Metropolitan Life. AFC agreed to deduct the premium payments for the life insurance from the employees’ pay checks and to remit the premiums to Metropolitan Life. AFC would not pay any part of the life insurance premiums. Metropolitan Life would process all of the life insurance claims. In most instances, AFC allowed Metropolitan Life agents to explain both the cafeteria plan and the life insurance option to AFC employees on AFC premises during business hours. Metropolitan Life Agents also solicited life insurance during these presentations and enrolled AFC employees in both the cafeteria plan and the life insurance plan. According to the complaint, defendant Daniel Frith, acting as a Metropolitan Life agent, told the plaintiffs" }, { "docid": "14435496", "title": "", "text": "been clear that AFC had not have endorsed the program. These functions are specifically allowed under the regulation without being considered as endorsing the program. See Brundage-Peterson v. Compcare Health Services Ins. Corp., 877 F.2d 509, 510 (7th Cir.1989) (an employer could distribute advertising brochures from insurance providers, answer questions concerning insurance, and deduct premiums from payroll and remain within safe harbor regulation); Cf. Kanne, 867 F.2d at 492 (merely advertising a group insurance plan does not establish an ERISA plan). AFC’s involvement with the life insurance program, however, went beyond these functions. Significantly, in most instances, AFC did not have its own managers explain the cafeteria plan and the Metropolitan Life plan, but rather had Metropolitan Life agents explain the two plans to AFC employees. In addition, Metropolitan Life agents enrolled AFC employees in both the cafeteria plan and the life insurance plan. Although, as stated above, this additional involvement by AFC in the Metropolitan Life plan presents a close question, the court is not con vinced that AFC endorsed the life insurance plan within the meaning of the safe-harbor regulation. Determining whether the life insurance plan meets the fourth criterion, whether AFC received any consideration in connection with the life insurance program, is also a close question. AFC did not receive any compensation for payroll deduction services from the life insurance plan. However, when employees signed up for the insurance plan, AFC received tax savings from their simultaneous participation in the cafeteria plan. AFC also saved the expense of having its own managers go to its various divisions and explain the cafeteria plan; Metropolitan Life agents went to the various divisions instead at the expense of Metropolitan Life. The court is nevertheless convinced that benefit AFC received was too indirect and tenuous to conclude that the Metropolitan Life plan falls outside the safe-harbor regulation. B. Preemption ERISA’s preemption clause explicitly preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C.A. § 1144(a) (emphasis added). Because the court does not find for purposes of subject-matter jurisdiction that the" }, { "docid": "23127050", "title": "", "text": "program is completely voluntary for employees or members; (3) The sole functions of the employer or employee organization with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer; and (4) The employer or employee organization receives no consideration in the form of cash or otherwise in connection the program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deductions or dues checkoffs. 29 C.F.R. § 2510.3-1(j) (1987). Group health insurance plans which meet each of these criteria are excluded from ERISA coverage. See Hansen v. Continental Ins. Co., 940 F.2d 971, 977 (5th Cir.1991). Moreover, the bare purchase of insurance, without any of the above elements present, does not constitute an ERISA plan, although it may be evidence of the existence of an ERISA plan. See Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988) (per curiam), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989) (citing Donovan v. Dillingham, 688 F.2d 1367, 1375 (11th Cir.1982) (en banc)). An employer has not established an ERISA plan if he merely advertises a group insurance plan that has none of the attributes described in 29 C.F.R. § 2510.3-1(j). Kanne, 867 F.2d at 492. In this case, the Department of Labor regulations do not exclude plaintiffs from ERISA’s coverage. Fugarino has done far more than purchase a group health insurance policy and advise his employees of its availability. Fugarino pays the premiums for his employees and permits them to reimburse him. Moreover, the record shows that Fugarino pays the health insurance premium for at least one of his employees. E. Relying on the case of Taggart Corp. v. Life and Health Benefits Admin., Inc., 617 F.2d 1208 (5th Cir.1980), cert. denied, 450 U.S. 1030, 101 S.Ct. 1739, 68 L.Ed.2d 225 (1981), plaintiffs argue that the group health insurance policy in this case does not constitute an ERISA plan. Taggart, however, dealt" }, { "docid": "14435490", "title": "", "text": "received tax savings when its employees participated in the cafeteria plan. For those employees who participated in the plan, AFC would have to pay less in federal taxes, such as matching FICA taxes. In addition, as an aside to the cafeteria plan, AFC also gave its employees an option to use their increased take-home pay to purchase life insurance from Metropolitan Life. AFC agreed to deduct the premium payments for the life insurance from the employees’ pay checks and to remit the premiums to Metropolitan Life. AFC would not pay any part of the life insurance premiums. Metropolitan Life would process all of the life insurance claims. In most instances, AFC allowed Metropolitan Life agents to explain both the cafeteria plan and the life insurance option to AFC employees on AFC premises during business hours. Metropolitan Life Agents also solicited life insurance during these presentations and enrolled AFC employees in both the cafeteria plan and the life insurance plan. According to the complaint, defendant Daniel Frith, acting as a Metropolitan Life agent, told the plaintiffs that the tax savings from the cafeteria plan would not be available to them unless they participated in Metropolitan Life’s plan. He also told the plaintiffs that the life insurance would be free to them. Plaintiffs claim that they signed up for the life insurance based on these representations. In fact, as explained above, AFC employees could have received the tax savings from participating in the cafeteria plan without purchasing life insurance. They simply would have received more take-home pay. II. DISCUSSION The question before the court is whether plaintiffs’ lawsuit has been properly removed to federal court as a case “arising under” the laws of the United States pursuant to 28 U.S.C.A. §§ 1441, 1331. Ordinarily, a cause of action arises under federal law only when the plaintiffs “well-pleaded complaint” raises a federal question. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65-67, 107 S.Ct. 1542, 1548-49, 95 L.Ed.2d 55 (1987). The Supreme Court has determined, however, that the uniform regulatory scheme established by ERISA “so completely preempt[s]” the area of employee benefit" }, { "docid": "14435493", "title": "", "text": "are participants in that plan. They disagree with defendants, however, that the Metropolitan Life plan is also an ERISA plan. Section 1002(1) defines an “employee welfare benefit plan” as “any plan, fund, or program ... established or maintained by an employer ... to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise ... benefits in the event of ... death.” Plaintiffs contend that the life insurance plan falls within the “safe-harbor” regulation promulgated by the Department of Labor, which excludes from ERISA’s scope employee benefit programs that entail little employer involvement. The “safe-harbor” regulation provides:. “[T]he terms ‘employee welfare benefit plan’ and ‘welfare plan’ shall not include a group or group-type insurance program offered by an insurer to employees or members of an employee organization, under which (1) No contributions are made by an employer or employee organization; (2) Participation [in] the program is completely voluntary for employees or members; (3) The sole functions of the employee or employee organization with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer; and (4) The employer or employee organization receives no consideration in the form of cash or otherwise in connection with the program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deductions or dues checkoffs.” 29 C.F.R. § 2510.3—1(j). In order to fit within the “safe-harbor” regulation, a plan must meet all four criteria. Memorial Hosp. System v. Northbrook Life Ins. Co., 904 F.2d 236, 241 n. 6 (5th Cir.1990); Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989). The court is of the view that the Metropolitan Life plan meets all four criteria. First, it is undisputed that AFC made no contributions to the life insurance" }, { "docid": "14435488", "title": "", "text": "ORDER MYRON H. THOMPSON, Chief Judge. Plaintiffs, seventeen employees of the Bonnie Plant Farm, a division of Alabama Farmer’s Cooperative, Inc. (“AFC”), initiated this lawsuit in the Circuit Court of Bullock County, Alabama, against defendants Metropolitan Life Insurance Company (“Metropolitan Life”) and Daniel L. Frith, a Metropolitan Life agent, claiming that the insurance company fraudulently induced them to buy life insurance. Plaintiffs asserted a number of state-law claims: misrepresentation, fraudulent suppression, negligence, wantonness, conspiracy to defraud, and breach of fiduciary duty. Defendants removed the case to this court pursuant to 28 U.S.C.A. §§ 1441, 1331, contending that this court has subject-matter jurisdiction because plaintiffs’ action is “super-preempted” under the Employee Retirement Income Security Act of 1974, 29 U.S.C.A. §§ 1001-1461, commonly known as ERISA. This cause is now before the court on plaintiffs’ motion to remand. In a removal action, the defendant has the burden to plead the basis for jurisdiction. Fowler v. Safeco Ins. Co. of America, 915 F.2d 616, 617 (11th Cir.1990) (citing B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. Unit A 1981)); Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 492 n. 4 (9th Cir.1988) (burden on defendant to prove facts necessary to establish preemption), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989). A defendant may submit affidavits, depositions, or other evidence to support removal. Fowler, 915 F.2d at 617. For the reasons set forth below, the court concludes that plaintiffs’ motion to remand will be granted. I. BACKGROUND In 1987, AFC adopted a flexible benefits plan, or “cafeteria plan,” which provided an opportunity for eligible AFC employees to use pre-tax dollars to pay their one-half share of the applicable premium for their health benefits obtained pursuant to their employment with AFC. AFC paid the other half of the premium. By electing to participate in the cafeteria plan, employees would enjoy a tax savings because they would use pre-tax dollars, rather than after-tax dollars, to pay their one-half share of the premiums. The tax savings resulted in an increase in the employees’ take-home pay. AFC also" }, { "docid": "22807933", "title": "", "text": "prepaid legal services or severance benefits (5) to the participants or their beneficiaries. Donovan v. Dillingham, 688 F.2d 1367, 1371 (11th Cir.1982) (en banc). The existence of an ERISA plan is a question of fact, to be answered in light of all the surrounding facts and circumstances from the point of view of a reasonable person. Credit Managers Ass’n v. Kennesaw Life & Accident Ins. Co., 809 F.2d 617, 625 (9th Cir.1987). At trial, the parties did not contest the issue of whether the ABC Trust was an ERISA plan. However, in the wake of the broad holding of Pilot Life, that ERISA preempts state law causes of action pertaining to improper handling of insurance claims under an employee benefit plan, the question of whether the policy here is governed by ERISA takes on vital importance to the Kannes, who now contest that an ERISA plan existed. The Department of Labor has issued regulations excluding certain group insurance programs from ERISA’s definition of “employee welfare benefit plan”: (j) Certain group or group-type insurance programs. For purposes of Title I of the Act and this chapter, the terms “employee welfare benefit plan” and “welfare plan” shall not include a group or group-type insurance program offered by an insurer to employees or members of an employee organization, under which (1) No contributions are made by an employer or employee organization; (2) Participation in the program is completely voluntary for employees or members; (3) The sole functions of the employer or employee organization with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer; and (4) The employer or employee organization receives no consideration in the form of cash or otherwise in connection with the program, other than reasonable compensation, excluding any profit, or administrative services actually rendered in connection with payroll deductions or dues checkoffs. 29 C.F.R. § 2510.3 — 1(j) (1987). A bare purchase of insurance, without any of the above elements present, does" }, { "docid": "23127049", "title": "", "text": "or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment.... 29 U.S.C. § 1002(1). Thus, by its express terms, ERISA encompasses welfare plans provided through the purchase of insurance. See Memorial Hosp., 904 F.2d at 240. Moreover, it is a common practice for employers to provide health care benefits to their employees through the purchase of a group health insurance policy from a commercial insurance company. Id. (citing Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 727, 105 S.Ct. 2380, 2383, 85 L.Ed.2d 728 (1985)). However, the United States Department of Labor, pursuant to authority granted to it by Congress, has promulgated regulations providing that certain insurance and other benefit plans are excluded from ERISA’s coverage. The Department of Labor regulations provide that the term “employee welfare benefit plan” shall not include a group or group-type insurance program offered by an insurer to employees or members of an employee organization, under which (1) No contributions are made by an employer or employee organization; (2) Participation in the program is completely voluntary for employees or members; (3) The sole functions of the employer or employee organization with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer; and (4) The employer or employee organization receives no consideration in the form of cash or otherwise in connection the program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deductions or dues checkoffs. 29 C.F.R. § 2510.3-1(j) (1987). Group health insurance plans which meet each of these criteria are excluded from ERISA coverage. See Hansen v. Continental Ins. Co., 940 F.2d 971, 977 (5th Cir.1991). Moreover, the bare purchase of insurance, without any of the above elements present, does not constitute an ERISA plan, although it may be evidence of the existence of an ERISA plan. See Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988) (per" } ]

[ { "docid": "22259485", "title": "", "text": "941 F.2d 119, 122-23 (2d Cir.1991). This does not mean that the plaintiff must show that the municipality had an explicitly stated rule or regulation. See, e.g., Villante v. Department of Corrections, 786 F.2d 516, 519 (2d Cir.1986). A § 1983 plain- . tiff injured by- a police officer may establish the pertinent custom or policy by showing that the municipality, alerted to the possible use of excessive force by its police officers, exhibited deliberate indifference. See, e.g., Fiacco v. City of Rensselaer, 783 F.2d 319 (2d Cir.1986), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 698 (1987); see id. at 326-27 (municipality “should not take a lais-sez-faire attitude toward the violation by its peace officers- of the very rights they are supposed to prevent others from violating”). To prove such deliberate indifference, the plaintiff must show that the need for' more or better supervision to protect against constitutional violations was obvious. See Canton v. Harris, 489 U.S. at 390, 109 S.Ct. at 1205. An obvious need may be demonstrated through proof of repeated complaints of civil rights violations; deliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents. See, e.g., Ricciuti v. N.Y.C. Transit Authority, 941 F.2d at 123; Fiacco v. City of Rensselaer, 783 F.2d at 328 (“[w]hether or not the claims had validity, the very assertion of a number of such claims put the City on notice that there was a possibility that its police officers had used excessive force”). Deliberate indifference may also be shown through expert testimony that a practice condoned by the defendant municipality was “contrary to the practice of most police departments” and was “particularly dangerous” because it presented an unusually high risk that constitutional rights would be violated. See Dodd v. City of Norwich, 827 F.2d 1, 4-6 (2d Cir.), modified on reh’g on other grounds, 827 F.2d 1, 7 (2d Cir.1987), cert. denied, 484 U.S. 1007, 108 S.Ct. 701, 98 L.Ed.2d 653 (1988); see also Oklahoma City v. Tuttle, 471 U.S. at" } ]

[ { "docid": "3658263", "title": "", "text": "failure to prevent it, the Court crafted the “deliberate indifference” standard to distinguish between cases in which the city’s inaction could fairly be said to have caused the injurious action and those in which it could not. See City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). The Court held that a municipality sometimes can be liable for the actions of an employee that was not directed or authorized by the city, but that in such cases the deliberate indifference standard of fault will be superimposed on section 1983, which itself requires no particular state of mind other than that which is necessary to state a violation of the underlying constitutional right. Id. at 405, 109 S.Ct. 1197. “Deliberate indifference” is a “stringent standard of fault ... requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of Comm’rs of Bryan Co. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). City of Canton was not a case where the policymaker was alleged to have directed or authorized the offending act (failure to provide medical care for pre-trial detainees) — the City was only alleged to have failed to train its employees so as to prevent them from committing the offending act. In the last of the major Supreme Court cases in this area, Board of Commissioners of Bryan County v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997), the Court applied the deliberate indifference standard even though the plaintiffs claim characterized the county’s act as an affirmative act — wrongful hiring of a police officer who later used excessive force — rather than as an omission like failure to train. The important thing for our purposes is that the “policy” alleged in Brown did not authorize the injurious action — the policymaker sheriff did not authorize the use of excessive force; at most, the policy allowed the injurious action to happen. Justice O’Connor distinguished between cases where the deliberate indifference element was not necessary and those where it was," }, { "docid": "22909533", "title": "", "text": "of Dr. Bolin or the nursing staff was inadequate and that there was a causal link between his failure and Brown’s death, we cannot conclude that there is a genuine material fact issue as to Callahan’s deliberate indifference to constitutional rights. Evidence is also lacking to prove the objective unreasonableness, for immunity purposes, of Sheriff Callahan’s management of the jail’s medical care. Deliberate indifference is “a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Deliberate indifference implies an official’s actual knowledge of facts showing that a risk of serious harm exists as well as the official’s having actually drawn that inference. Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir.1998) (internal quotation marks and citations omitted). Deliberate indifference is more than mere negligence or even gross negligence. City of Canton, 489 U.S. at 388, 109 S.Ct. 1197. Proof of deliberate indifference normally requires a plaintiff to show a pattern of violations and that the inadequate training or supervision is “obvious and obviously likely to result in a constitutional violation.” Estate of Davis, 406 F.3d at 381 (citations omitted). ■ Here, evidence of Sheriff Callahan’s failure to supervise Dr. Bolin and the nursing staff is simply too attenuated to permit the inference that the Sheriff was deliberately indifferent, ie., that he ignored a known or obvious risk of unconstitutionally deficient medical care. The complaints are that he condoned or ratified Dr. Bolin’s harassing and intimidation of the nursing staff, failed to supervise Dr. Bolin’s actions that discouraged the nurses from calling the doctor or sending patients to the ER, and failed to supervise the nurses to work with Dr. Bolin for the inmates’ best care. A jury would be asked to infer from Dr. Bolin’s unpleasant attitude not only that the nurses would be unhappy but that they would be so intimidated as not to respond to the inmates’ serious medical needs. Yet apart from Nurse Kracja’s expressed fear of" }, { "docid": "21800516", "title": "", "text": "an employee to do so, resolving [ ] issues of fault and causation is straightforward.” Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 404-05, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). But where the claim is that municipal action lawful on its face caused an employee to inflict constitutional injury, “rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.” Id. sit 405, 117 S.Ct. 1382. In City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), the Court held that municipal liability for a claim such as failure to supervise employee Edwards— plaintiffs’ theory in this case—requires proof that the failure “amounts to deliberate indifference to the rights of persons with whom the [employee] eome[s] into contact.” Municipal inaction must be the “moving force [behind] the constitutional violation.” Id. at 389, 109 S.Ct. 1197 (alteration in original) (quotation omitted); see Szabla, 486 F.3d at 390-91. Deliberate indifference in this context “is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Brown, 520 U.S. at 410, 117 S.Ct. 1382. The issue is whether, “in light of the duties assigned to specific officers or employees the need for more or different training [or supervision] 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.” Canton, 489 U.S. at 390, 109 S.Ct. 1197, quoted in Liebe v. Norton, 157 F.3d 574, 579 (8th Cir. 1998); cf. Cash v. Cty. of Erie, 654 F.3d 324, 337 (2d Cir. 2011) (failure-to-supervise claim), cert. denied, 565 U.S. 1259, 132 S.Ct. 1741, 182 L.Ed.2d 528 (2012). “A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train.” Connick v. Thompson, 563 U.S. 51, 62, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (quotation omitted). “In resolving the issue of" }, { "docid": "11160007", "title": "", "text": "a part of pre-service training for corrections officers. The alleged constitutional violation stems from the officers’ failure to “take reasonable measures to protect prisoners from violence at the hands of other prisoners.” Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir.1997) (internal quotation marks omitted). We will focus on whether the failure to provide pre-service training on conflict de-escalation and intervention amounts to deliberate indifference, and whether this deficiency in training caused Thomas’s injury. A. “ ‘[Deliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (“Bryan Cnty.”). Ordinarily, “[a] pattern of similar constitutional violations by untrained employees” is necessary “to demonstrate deliberate indifference for purposes of failure to train.” Connick v. Thompson, — U.S. —, —, 131 S.Ct. 1350, 1360, 179 L.Ed.2d 417 (2011). “Without notice that a course of training is deficient in a particular respect, decision-makers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.” Id. A pattern of violations puts municipal decisionmakers on notice that a new program is necessary, and “[t]heir continued adherence to an approach that they know or should know has failed to prevent tor-tious conduct by employees may establish the conscious disregard for the consequences of their action — the ‘deliberate indifference’ — necessary to trigger municipal liability.” Bryan Cnty., 520 U.S. at 407, 117 S.Ct. 1382. Nevertheless, the Supreme Court posited in Canton that in certain situations, the need for training “can be said to be ‘so obvious,’ that failure to do so could properly be characterized as ‘deliberate indifference’ to constitutional rights” even without a pattern of constitutional violations. 489 U.S. at 390 n. 10, 109 S.Ct. 1197. The Court offered a hypothetical example of this “single-incident” failure-to-train liability. Because “city policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons,” if the city arms the officers with firearms, “the" }, { "docid": "4376805", "title": "", "text": "rights were violated and so satisfied the first prong under Saucier. a. Danger Affirmatively Created or Increased Due to State Action First, Shields’s affirmative actions placed the Kennedy family in a situation of danger greater than they would have faced had he not acted at all. Shields does not dispute that the revelation to Michael Burns’s mother of the allegations of sexual abuse against Michael Burns triggered his actions against Plaintiff and her husband. In revealing the existence of allegations against Michael to Angela Burns after having promised Kennedy that he would notify her first, Shields created a situation of heightened danger. It was inevitable that Michael Burris would eventually learn of the allegations made against him, and he would likely infer who had made them. If Kennedy had received the prior warning officer Shields promised her, she and her family could have taken additional precautions. Instead, they relied on Shields’s promise of advance notification and so considered additional precautions unnecessary. Moreover, Shields further augmented this danger by. offering false assurances that the police would patrol the Kennedy’s neighborhood the night of the shooting. Misrepresentation of the risk faced by a plaintiff can contribute to a finding of state-created danger. See Grubbs, 974 F.2d at 121 (“The Defendants also enhanced L.W.’s vulnerability to attack by misrepresenting to her the risks attending her work.”). Plaintiff alleges that she and her husband based their decision to remain at home that night and leave in the morning in reliance on Shields’s assurances that the neighborhood would be patrolled. Defendant’s affirmative promise of a police patrol thus influenced Plaintiffs assessment of the risk she and her family faced. b. Deliberate Indifference Second, resolving all factual disputes in Plaintiffs favor, Shields acted with deliberate indifference. “ ‘[Deliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his actions.” Bryan County v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). See also Christie v. Iopa, 176 F.3d 1231, 1240 (9th Cir.1999). Here, Plaintiff has alleged that the consequences of Shields’s actions" }, { "docid": "22069666", "title": "", "text": "while an officer put a knee into her back. The Town argues, however, that the district court correctly concluded that plaintiffs failed to raise a genuine issue of material fact as to McCue’s failure to supervise because they have not proffered evidence that the demonstrators repeatedly complained about the excessive force after the demonstrations, or that McCue repeatedly failed to investigate such complaints. This argument is misplaced. While we have held that proof of a policymaker’s failure to respond to repeated complaints of civil rights violations would be sufficient to establish deliberate indifference, Vann, 72 F.3d at 1049, we have never required such a showing. The means of establishing deliberate indifference will vary given the facts of the case and need not rely on any particular factual showing. The operative inquiry is whether the facts suggest that the policymaker’s inaction was the result of a “conscious choice” rather than mere negligence. City of Canton, 489 U.S. at 389, 109 S.Ct. 1197 (internal quotation marks omitted); see also Bd. of County Comm’rs v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (stating that “deliberate indifference ... requir[es] proof that a municipal actor disregarded a known or obvious consequence of his action” or inaction (internal quotation marks omitted)). Thus, plaintiffs’ evidence must establish only that a policymaking official had notice of a potentially serious problem of unconstitutional conduct, such that the need for corrective action or supervision was “obvious,” Vann, 72 F.3d at 1049, and the policymaker’s failure to investigate or rectify the situation evidences deliberate indifference, rather than mere negligence or bureaucratic inaction. Considered under this standard, plaintiffs’ proffered affidavits are sufficient to withstand summary judgment, because the evidence allows the inference that McCue himself witnessed (and perhaps encouraged) the unconstitutional conduct, and that the conduct was so blatantly unconstitutional that McCue’s inaction could be the result of deliberate indifference to the protesters’ constitutional rights. Rather than considering plaintiffs’ allegations as a whole, the district court treated each allegation as to McCue and the officers’ actions as an isolated act, leading it to conclude that none of" }, { "docid": "4376806", "title": "", "text": "patrol the Kennedy’s neighborhood the night of the shooting. Misrepresentation of the risk faced by a plaintiff can contribute to a finding of state-created danger. See Grubbs, 974 F.2d at 121 (“The Defendants also enhanced L.W.’s vulnerability to attack by misrepresenting to her the risks attending her work.”). Plaintiff alleges that she and her husband based their decision to remain at home that night and leave in the morning in reliance on Shields’s assurances that the neighborhood would be patrolled. Defendant’s affirmative promise of a police patrol thus influenced Plaintiffs assessment of the risk she and her family faced. b. Deliberate Indifference Second, resolving all factual disputes in Plaintiffs favor, Shields acted with deliberate indifference. “ ‘[Deliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his actions.” Bryan County v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). See also Christie v. Iopa, 176 F.3d 1231, 1240 (9th Cir.1999). Here, Plaintiff has alleged that the consequences of Shields’s actions were obvious: first, that once informed of the allegations against him, Michael Burns would attempt to harm the Kennedy family; and second, that having been assured by Shields’s promise to provide police protection, the Kennedy family would rely upon that promise. Resolving factual disputes in Kennedy’s favor, the record supports her assertion that Shields should have recognized the obvious consequences of his actions. Most significantly, Plaintiff specifically asked Shields to give her advance notification because she feared for the safety of her family. In addition, Plaintiff herself had previously informed Shields of Michael Burns’s violent tendencies, including an incident in which Michael Burns had broken into a girlfriend’s home. Shields also knew of a separate investigation in which school authorities suspected (albeit erroneously) that Michael Burns sent death threats to another student. Finally, on the night of the attack, Plaintiff informed Shields directly that he had placed her family in danger by informing the Burns family of the allegations against Michael prior to notifying the Kennedy family. Under these circumstances, the obvious consequence of informing" }, { "docid": "9226146", "title": "", "text": "false story about the murder, which was then used to arrest and convict Mr. Thomas, and, hence, was part of a civil rights conspiracy. VII. Monell The City concedes that Mr. Thomas \"does plead sufficient facts in his complaint to bring a Fourth Amendment malicious prosecution claim and Fourteenth Amendment fabrication of evidence claim against the City.\" Instead, the City challenges Mr. Thomas' claims for Fourteenth Amendment malicious prosecution, Brady violations, and failure to investigate. To hold a municipality liable under § 1983, a plaintiff must \"identify a municipal policy or custom that amounts to deliberate indifference to the rights of people with whom the police come into contact.\" Carswell v. Borough of Homestead , 381 F.3d 235, 244 (3d Cir. 2004). First, the Court notes that Mr. Thomas has only alleged one other instance of a Brady violation: the Jimmy Dennis prosecution. See Compl. ¶ 199. This is not sufficient to allege a municipal custom or policy of Brady violations. Cf. Wright v. City of Phila. , 229 F.Supp.3d 322, 337 (E.D. Pa. 2017) (declining to dismiss a Monell claim when the plaintiff alleged \"at least eight separate instances\" in which officers \"engaged in the type of misconduct that is alleged to have occurred here\"). Second, as to Fourteenth Amendment malicious prosecution, Brady violations, and failure to investigate, the City argues that Mr. Thomas cannot show that the City was deliberately indifferent to its officers' misconduct. Deliberate indifference \"is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.\" Connick v. Thompson , 563 U.S. 51, 61, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (quoting Board of Comm'rs of Bryan Cty. v. Brown , 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ). Though no court within the Third Circuit has weighed in, several courts have held that a municipality cannot be deliberately indifferent to a right that is not clearly established. See Szabla v. City of Brooklyn Park , 486 F.3d 385, 393 (8th Cir. 2007) (\"[A] municipal policymaker cannot exhibit fault rising to the" }, { "docid": "7413976", "title": "", "text": "852 (5th Cir.2009). A “policymaker who defends conduct that is later shown to be unlawful does not necessarily incur liability on behalf of the municipality.” Id. at 848 (citing Coon v. Ledbetter, 780 F.2d 1158, 1161-62 (5th Cir.1986)). Zarnow also suggests that Chief Coughlin may have incurred liability on behalf of the City by failing to supervise his subordinates during the search. To support a supervisory liability claim, the misconduct of a subordinate must be conclusively linked to the action or inaction of the supervisor. See Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 453 (5th Cir. 1994) (en banc). A supervisory official is liable if he demonstrates deliberate indifference to a plaintiffs constitutionally protected rights. Id. at 454. Deliberate indifference is “more blameworthy than negligence” but less blameworthy than purposeful harm. See Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The standard is “stringent” and requires that the supervisory actor disregarded a known consequence of his action. Southard v. Tex. Bd. of Crim. Justice, 114 F.3d 539, 551 (5th Cir.1997). Here, there was no deliberate indifference. Coughlin shared the errant view of the doctrine which caused Zarnow’s constitutional deprivation. Negligent misinformation is insufficient to establish supervisory liability. See id. Similarly, there is no evidence that Coughlin’s failure to supervise the search rose above the level of negligent inaction. “Unintentionally negligent oversight” does not satisfy the deliberate indifference standard. Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 756 (5th Cir.1993) (citation omitted). b. Single Instance of Unconstitutional Conduct by a Policymaker The court did not consider whether Chief Coughlin committed a single constitutional violation sufficient to confer liability on the City. This was because Zarnow did not allege in the district court that Chief Coughlin personally committed such a violation. Instead, the focus was on theories of ratification and supervisory liability. For the first time on appeal, Zarnow argues that a single incident of unconstitutional conduct by a policymaker may impute liability to the City. The only citation to this rule in her appellate briefing appears in the argument that Chief Coughlin" }, { "docid": "9226147", "title": "", "text": "(declining to dismiss a Monell claim when the plaintiff alleged \"at least eight separate instances\" in which officers \"engaged in the type of misconduct that is alleged to have occurred here\"). Second, as to Fourteenth Amendment malicious prosecution, Brady violations, and failure to investigate, the City argues that Mr. Thomas cannot show that the City was deliberately indifferent to its officers' misconduct. Deliberate indifference \"is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.\" Connick v. Thompson , 563 U.S. 51, 61, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (quoting Board of Comm'rs of Bryan Cty. v. Brown , 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ). Though no court within the Third Circuit has weighed in, several courts have held that a municipality cannot be deliberately indifferent to a right that is not clearly established. See Szabla v. City of Brooklyn Park , 486 F.3d 385, 393 (8th Cir. 2007) (\"[A] municipal policymaker cannot exhibit fault rising to the level of deliberate indifference to a constitutional right when that right has not yet been clearly established.\"); see also Townes v. City of New York, 176 F.3d 138, 143-44 (2d Cir. 1999) ; Williamson v. City of Virginia Beach, 786 F.Supp. 1238, 1264-65 (E.D. Va. 1992) ; Zwalesky v. Manistee County, 749 F.Supp. 815, 820 (W.D. Mich. 1990). Because the rights at issue in the claims for Fourteenth Amendment malicious prosecution, Brady violations, and failure to investigate were not clearly established in 1994, the Court dismisses the Monell count as to these claims. The Court notes the narrowness of this conclusion: because the City concedes that Mr. Thomas has articulated a Monell claim for Fourth Amendment malicious prosecution and for Fourteenth Amendment fabrication of evidence, the Monell count itself survives. VIII. Punitive Damages Officer Gist argues that Mr. Thomas may not recover punitive damages in this § 1983 case. Not so. Punitive damages are available against an individual § 1983 defendant \"when the defendant's conduct is shown to be motivated by evil motive or intent," }, { "docid": "12956610", "title": "", "text": "the relevant question is whether Duncan’s actions amounted to deliberate indifference. Cf. Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 456 n. 12 (5th Cir.) (en banc) (applying deliberate indifference standard for purposes of § 1983 analysis and recognizing that many good faith but ineffective responses may satisfy a school official’s obligations), cert, denied sub nom. Lankford v. Doe, 513 U.S. 815, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994). We hold, as a matter of law, that they did not. See Gebser, 524 U.S. at 291, 118 S.Ct. 1989 (equating deliberate indifference to “an official decision not to remedy the violation”). Thus, the district court correctly granted summary judgment in favor of DCSD on Plaintiffs’ Title IX claim. B. Section 1983 Plaintiffs claim that the district court erred by granting summary judgment and finding DCSD and Duncan not liable under section 1983 for Mency’s misconduct. A plaintiff seeking to impose liability on a municipality (school district) under section 1983 must identify a municipal “policy” or “custom” that caused a deprivation of federal rights. Board of County Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 1388, 137 L.Ed.2d 626 (1997). But it is well established that a municipality may not be held liable under section 1983 on a theory of respondeat superior. See Monell v. Dept. of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d’611 (1978). Instead, “recovery from a municipality is limited to acts that are, properly speaking, acts ‘of the municipality’ — -that is, acts which the municipality has officially sanctioned or ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 478, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986). Moreover, it is not enough to identify conduct properly attributable to the municipality. A plaintiff must show that the municipal action was taken with the requisite degree of culpability, i.e., that the municipal action was taken with “ ‘deliberate indifference’ ” to its known or obvious consequences. Brown, 520 U.S. at 407, 117 S.Ct. at 1390 (quoting City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 1204, 103" }, { "docid": "22916716", "title": "", "text": "and used force on a couple of occasions when Fruge would have taken different action. Fruge also noted that Tarver may have been untruthful while testifying in court on a prior occasion. However, there is no indication in Fruge’s testimony that anyone other than Fruge knew of these problems, or that the Village or the relevant policymakers knew about them. Finally, as to Marcantel, Marcantel testified that he was once the subject of an anonymous complaint, filed with the state troopers, that he smelled of alcohol on a traffic stop. According to Marcantel, the troopers investigated immediately and found that he had not been drinking. At bottom, plaintiffs have not introduced evidence that would permit a jury to find that the Village of Turkey Creek acted with deliberate indifference towards Deville’s constitutional rights in failing to discipline these officers. There is no evidence that formal complaints were filed against them before the Deville incident, despite Fruge’s concerns about Tarver’s performance, and there is no evidence that the village or the relevant decisionmakers knew about those problems. Thus, plaintiffs have not-shown that the Village’s alleged failure to discipline the officers was undertaken with “deliberate indifference to the ‘known or obvious consequences’ that constitutional violations would result.” Piotrowski, 237 F.3d at 579, 581 (quoting Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 407, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)); see also Scott v. Moore, 114 F.3d 51, 54-55 (5th Cir.1997) (en banc) (finding no genuine issue regarding city’s alleged deliberate indifference when there was “no showing that the city had actual knowledge” that its actions created a risk of harm to the plaintiff and had received no prior complaints regarding the tortfeasor-employee). Accordingly, the district court did not err in granting summary judgment to the Village of Turkey Creek on plaintiffs’ § 1983 claims. E. Claims Under Louisiana Law Plaintiffs have alleged and briefed the following state-law claims against Tarver and Marcantel: (1) false arrest and imprisonment, (2) excessive force and battery; and (3) malicious prosecution. Plaintiffs have also asserted a vicarious liability claim against the Village" }, { "docid": "2555875", "title": "", "text": "at 290, 292-93, 118 S.Ct. 1989. More specifically, to hold the District liable for such conduct, plaintiffs must show (1) “a district official with the authority to address the complained-of conduct and take corrective action had actual notice” of the discriminatory conduct and (2) was deliberately indifferent to the conduct amounting to “an official decision not to remedy the violation.” Kinman v. Omaha Pub. Sch. Dist., 171 F.3d 607, 610 (8th Cir.1999) (citing Gebser, 524 U.S. at 290, 118 S.Ct. 1989). “Actions and decisions by officials that are merely inept, erroneous, ineffective, or negligent do not amount to deliberate indifference .... ” Doe v. Dallas Ind. School Dist., 153 F.3d 211, 219 (5th Cir.1998)(same sex harassment case). In Geb-ser, the Court analogized the Title IX deliberate indifference standard to that pertaining to municipal liability under § 1983. 524 U.S. at 291, 118 S.Ct. 1989; see Doe v. Gooden, 214 F.3d 952, 955 (8th Cir.2000). In that context, the Supreme Court has said that “... ‘deliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Board of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 408, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (citing City of Can ton v. Harris, 489 U.S. 378, 388-92, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). Essentially what is required in this ease is sufficient evidence to conclude the District turned a “blind eye” to a known or obvious risk that Skinner would sexually abuse children. Kinman, 94 F.3d at 467. The parties’ briefs do not go head to head on the required elements. The defendant District’s motion primarily challenges plaintiffs’ evidence regarding deliberate indifference. Plaintiffs’ resistance focuses on the notice element. (i) Notice Principal Farmer had the authority to address any misconduct by Skinner as shown by the investigations and actions taken by him in connection with the incident involving Ginny and those which preceded it. The significant facts for notice purposes are not those involving the abuse inflicted on Ginny. Ginny’s report was immediately taken up and Skinner did not" }, { "docid": "15944165", "title": "", "text": "owners out of their premises when executing writs of replevin, and his failure to train his deputies on how to execute such writs, constituted “policies” that were the “moving forces” behind constitutional violations. A. To establish liability for a policy or practice, a plaintiff must prove that (1) the local government or official promulgated a policy; (2) the decision displayed “deliberate indifference” and proved the government’s culpability; and (3) the policy decision lead to the particular injury. Bryan County, 219 F.3d at 457. A formal policy is “[a] policy statement, ordinance, regulation or decision that is officially adopted and promulgated by the municipality’s lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority.” Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.1984) (en banc). An informal but still official policy is “[a] persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy.” Id. Finally, “a final decisionmaker’s adoption of a course of action ‘tailored to a particular situation and not intended to control decisions in later situations’ may, in some circumstances, give rise to municipal liability under § 1983.” Board of the County Comm’rs v. Brown, 520 U.S. 397, 406, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). The culpability element requires proof that the defendants adopted the policy with “deliberate indifference.” This “is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Id. at 410, 117 S.Ct. 1382. The causation element requires that the policy be the “moving force” behind the plaintiffs injury. “That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Id. at 404, 117 S.Ct. 1382. Thigpen and McNeill testified that the sheriffs office routinely seized" }, { "docid": "17124310", "title": "", "text": "enough that the same standards of fault and causation should govern. A municipality, with its broad obligation to supervise all of its employees, is liable under § 1983 if it supervises its employees in a manner that manifests deliberate indifference to the constitutional rights of citizens. We see no principled reason why an individual to whom the municipality has delegated responsibility to directly supervise the employee should not be held liable under the same standard. 15 F.3d at 453. The court concluded that a supervisory official may be liable under section 1983 if that official, by action or inaction, demonstrates a deliberate indifference to a plaintiffs constitutionally protected rights. Id. at 454. Athough the deliberate indifference standard arose from a case alleging a violation of a substantive due process right, the standard applies to other underlying constitutional violations as well. Id., n. 8. The Supreme Court has recently reaffirmed that “ ‘deliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Board of the County Commissioners of Bryan County, Oklahoma, v. Brown, — U.S.-,-, 117 S.Ct. 1382, 1391, 137 L.Ed.2d 626 (1997); see also, Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994)(de-liberate indifference is more than “more blameworthy than negligence”, but less than “acts or omissions for the very purpose of causing harm or with knowledge that harm will result”). The “deliberate indifference” standard permits courts to separate omissions that “amount to an intentional choice” from those that are merely “unintentionally negligent oversight[s].” Gonzalez v. Ysleta Independent School District, 996 F.2d 745, 756 (5th Cir.1993), quoting Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir.1992). Appellees assert that because Collins knew of the numerous, similar complaints of sexual harassment against Strain, and failed to' stop the harassment, Collins was deliberately indifferent to appellees’ constitutional rights. Collins asserts that his receipt of the EEO investigative reports cannot as a matter of law show that he acted with deliberate indifference to appellees’ rights, because the EEO office conducted independent investigations and" }, { "docid": "14135291", "title": "", "text": "to hold a municipality liable under § 1983 must identify a municipal policy or custom that caused plaintiffs injury. Bd. of County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “[A] municipality may not be held liable under § 1983 solely because it employs a tortfeasor.” Bd. of County Comm’rs of Bryan County, supra (citing Monell, 436 U.S. at 691, 98 S.Ct. 2018). The plaintiff must “demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Id. at 404, 117 S.Ct. 1382. Similarly, a supervisor cannot be held liable under § 1983 for the acts of a subordinate on a respondeat superior theory. City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Hegarty v. Somerset County, 53 F.3d 1367, 1380 (1st Cir.1995). Rather, supervisory liability must be based on the supervisor’s own acts or omissions. Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). The plaintiff must show that the supervisor’s behavior demonstrates deliberate indifference to conduct that is violative of a plaintiffs constitutional rights. Id. at 582 (citations omitted). “ ‘[Djeliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. at 410, 117 S.Ct. 1382. [A] supervisor cannot be liable for merely negligent acts. Rather, a supervisor’s acts or omissions must amount to a reckless or callous indifference to the constitutional rights of others... “An official displays such reckless or callous indifference when it would be manifest to any reasonable official that his conduct was very likely to violate an individual’s constitutional rights.” Febus-Rodriguez v. Betancourt-Lebron," }, { "docid": "7413975", "title": "", "text": "officers’ testimony concerning the plain view doctrine was given several years after the incident giving rise to this action. During the intervening period, Zarnow alleges many unconstitutional searches of the same type must have taken place. No evidence of that was offered. There is no testimony that the plain view doctrine was misused in another case. Mere “improbable inferences” and “unsupported speculation” are not proper summary judgment evidence. Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.1994). Zarnow asserts that the Chief Coughlin and the City effectively ratified the officers’ unconstitutional conduct. Among the arguments is that during this litigation, the City has defended the constitutionality and propriety of the actions taken by its officers, despite the finding of a prior panel of this Court that the officers’ actions violated the Fourth Amendment. Such a defense constitutes, so the argument goes, a ratification of the unlawful conduct of its officers. Good faith statements made in defending complaints against municipal employees do not demonstrate ratification. See Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 852 (5th Cir.2009). A “policymaker who defends conduct that is later shown to be unlawful does not necessarily incur liability on behalf of the municipality.” Id. at 848 (citing Coon v. Ledbetter, 780 F.2d 1158, 1161-62 (5th Cir.1986)). Zarnow also suggests that Chief Coughlin may have incurred liability on behalf of the City by failing to supervise his subordinates during the search. To support a supervisory liability claim, the misconduct of a subordinate must be conclusively linked to the action or inaction of the supervisor. See Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 453 (5th Cir. 1994) (en banc). A supervisory official is liable if he demonstrates deliberate indifference to a plaintiffs constitutionally protected rights. Id. at 454. Deliberate indifference is “more blameworthy than negligence” but less blameworthy than purposeful harm. See Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The standard is “stringent” and requires that the supervisory actor disregarded a known consequence of his action. Southard v. Tex. Bd. of Crim. Justice, 114 F.3d 539," }, { "docid": "10117548", "title": "", "text": "520 U.S. 397, 407, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (quoting [City of Canton, Ohio u] Harris, 489 U.S. at 388, 109 S.Ct. 1197[, 103 L.Ed.2d 412] (1989)). “Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Brown, 520 U.S. at 410, 117 S.Ct. 1382. In other words, the risk of a constitutional violation arising as a result of the inadequacies in the municipal policy must be “plainly obvious.” Id. at 412, 117 S.Ct. 1382; see also Stemler v. City of Florence, 126 F.3d 856, 865 (6th Cir.1997). Gregory, 444 F.3d at 752-53. A plaintiff must show a “direct causal link between the custom and the constitutional deprivation; that is, she must show that the particular injury was incurred because of the execution of that policy.” Doe, 103 F.3d at 508 (internal quotation marks omitted); see also Fair v. Franklin Cnty., Ohio, 215 F.3d 1325 (6th Cir.2000) (table decision) (“Monell requires that a plaintiff identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy.”) (internal quotation marks omitted). To show the existence of a municipal policy or custom leading to the alleged violation, a plaintiff can identify: (1) the municipality’s legislative enactments or official policies; (2) actions taken by officials with final decision-making authority; (3) a policy of inadequate training or supervision; or (4) a custom of tolerance of acquiescence of federal violations. Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir.2005) (citing Monell). In Baynes’ complaint, he asserted a § 1983 claim against Macomb County, arguing that the County “developed and maintained policies or customs exhibiting deliberate indifference to the Constitutional rights of persons within the county, which caused the violation of Plaintiffs rights.” Baynes specifically alleged that Defendant Macomb County “and its sheriffs’ department” implemented the following unconstitutional customs and practices: a. Tolerated and encouraged its police officer to harass its citizens by performing warrantless and unconstitutional searches/seizures on innocent citizens without any legal cause or" }, { "docid": "2473714", "title": "", "text": "under Title IX to those underlying the deliberate indifference standard under § 1983. Gebser, 524 U.S. at 291, 118 S.Ct. 1989 (citing Bd. of Cnty. Commis. of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (deliberate indifference standard described as “stringent” and “requiring proof that [the official] disregarded a known or obvious consequence of his action”)). Educational institutions may be liable for deliberate indifference to known acts of harassment by one student against another. Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). To be actionable an institution’s deliberate indifference must either have caused the harassment or made students vulnerable to it. Id. at 644-45, 119 S.Ct. 1661. A plaintiff must show that the institution had “substantial control over both the harasser and the context in which the known harassment occurs.” Id. at 645, 119 S.Ct. 1661. In order to avoid deliberate indifference liability an institution “must merely respond to known peer harassment in a manner that is not clearly unreasonable.” Id. at 648-49, 119 S.Ct. 1661. The “not clearly unreasonable” standard is intended to afford flexibility to school administrators. Id. at 648, 119 S.Ct. 1661. The Court concluded in Davis that the plaintiff had presented a genuine issue of material fact on the issue of deliberate indifference by the allegation that the school board had “fail[ed] to respond in any way over a period of five months” to complaints by her and other female students. Id. at 649,119 S.Ct. 1661. Our court has previously considered deliberate indifference claims against a university based on sexual assault allegations in Ostrander v. Duggan, 341 F.3d 745 (8th Cir.2003). In that case, three University of Missouri students brought sexual assault complaints against fraternity members to the university’s Office of Greek Life. Id. at 748. Administrators met with the fraternity’s local advisor and wrote to its national president stating the university’s expectation that the chapter would investigate the allegations and provide educational programming about sexual assault to its members. Id. Applying the framework" }, { "docid": "22288398", "title": "", "text": "of a decision maker’s action or acquiescence. See, e.g., Beck, 89 F.3d at 973 (“written complaints were sufficient for a reasonable jury to infer that Chief of Police of Pittsburgh and his department knew or should have known” of officer’s violent behavior); Silva v. Worden, 130 F.3d 26, 31 (1st Cir.1997) (stating custom is demonstrated by showing “practice is so well settled and widespread that the poli-cymaking officials have either actual or constructive knowledge of it”). Thus, we hold that there is sufficient evidence that the procedure was a policy or custom of the County’s. Once a § 1983 plaintiff identifies a municipal policy or custom, he must “demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” Board of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). If, as here, the policy or custom does not facially violate federal law, causation can be established only by “demonstrat[ing] that the municipal action was taken with ‘deliberate indifference’ as to its known or obvious consequences. A showing of simple or even heightened negligence will not suffice.” Id. at 407, 117 S.Ct. 1382 (citations omitted); see also City of Canton, Ohio v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Failure to adequately screen or train municipal employees can ordinarily be considered deliberate indifference only where the failure has caused a pattern of violations. See Bryan County, 520 U.S. at 408-09, 117 S.Ct. 1382. Although it is possible to maintain a claim of failure to train without demonstrating such a pattern, the Bryan County Court made clear that the burden on the plaintiff in such a case is high: In leaving open in Canton the possibility that a plaintiff might succeed in carrying a failure-to-train claim without showing a pattern of constitutional violations, we simply hypothesized that, in a narrow range of circumstances, a violation of federal rights may be a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations. The likelihood that" } ]

[ { "docid": "22661193", "title": "", "text": "interfering with the treatment once prescribed. Regardess of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983. This conclusion does not mean, however, that every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment. An accident, although it may produce added anguish, is not on that basis alone to be characterized as wanton infliction of unnecessary pain. In Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 (1947), for example, the Court concluded that it was not unconstitutional to force a prisoner to undergo a second effort to electrocute him after a mechanical malfunction had thwarted the first attempt. Writing for the plurality, Mr. Justice Reed reasoned that the second execution would not violate the Eighth Amendment because the first attempt was an “unforeseeable accident.” Id., at 464. Mr. Justice Frankfurter’s concurrence, based solely on the Due Process Clause of the Fourteenth Amendment, concluded that since the first attempt had failed because of “an innocent misadventure,” id., at 470, the second would not be “ ‘repugnant to the conscience of mankind,’ ” id., at 471, quoting Palko v. Connecticut, 302 U. S. 319, 323 (1937). Similarly, in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.” Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend “evolving standards of decency” in violation of the Eighth Amendment. Ill Against this backdrop, we now consider whether respondent’s complaint states a cognizable § 1983 claim. The handwritten pro se document is to be" } ]

[ { "docid": "11528794", "title": "", "text": "that, considered either alone or in combination, specifically amount to cruel and unusual punishment, there can be no Eighth Amendment violation. Likewise, the mere fact that conditions are interrelated does not justify a remedy that is more intrusive than necessary to correct the constitutional wrong. Such is the case even if the court is convinced that certain conditions, while not themselves unconstitutional, are either harsh, oppressive, or contrary to sound penological practices. See Rhodes, supra, 452 U.S. at 347, 101 S.Ct. at 2399, 69 L.Ed.2d at 69. As important as what the Supreme Court decided in Rhodes is what it did not decide. The Court „did not rule that double celling may never amount to cruel and unusual punishment. Rather, the extensive analysis of related prison conditions makes it crystal clear that each case must be judged on its own unique facts. Furthermore, the Court did not purport to define what conditions of confinement, “other than those in Gamble and Hutto,” id., may constitute cruel and unusual punishment. That question, however, has been addressed in numerous lower court decisions. To the extent that those cases are not inconsistent with Rhodes, they retain their vitality and will be looked to for guidance in the present case. The Eighth Amendment clearly requires states to furnish its inmates with “reasonably adequate food, clothing, shelter,' sanitation, medical care, and personal safety.” Newman v. Alabama, 559 F.2d 283, 291 (5th Cir.1977). Those areas are generally considered as the “core” areas entitled to Eighth Amendment protections. They are the basic necessities of civilized life, and are, during lawful incarceration for conviction of a crime, wholly controlled by prison officials. Inmates must necessarily rely upon prison officials and staff to ensure that those basic necessities are met. A corollary to the state’s obligation to provide inmates with constitutionally adequate shelter is the requirement of minimally adequate living space that includes “reasonably adequate ventilation, sanitation, bedding, hygienic materials, and utilities (i.e., hot and cold water, light, heat, plumbing).” Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239" }, { "docid": "18299591", "title": "", "text": "to essen tial services, fewer opportunities to engage in rehabilitative programs, too little of the privacy and quiet essential for psychological well being and too much exposure to other prisoners in confined spaces. Overcrowding has resulted in a climate of tension, anxiety and fear among both inmates and staff — which, if not corrected, may well erupt in violence, leading to serious physical harm and death. Gapps/West I, 495 F.Supp. at 814. As a system, the Oregon prisons house over 2700 inmates in institutions designed to hold only 1700. Inmates have between 24.6 and 56.1 square feet of living space. The vast majority of inmates at OSP, OSCI, and the Annex, live in quarters smaller than those recommended by the National Sheriff’s Association (70 to 80 square feet), the American Public Health Association (60), the American Correctional Association (60), and even ...the U.S. Army (55). But that does not mean the conditions of confinement are below the constitutional minima. “[0]pinions of experts as to desirable prison conditions [do not] suffice to establish contemporary standards of decency” embodied in the eighth amendment. Chapman, 452 U.S. at 348 n. 13, 101 S.Ct. at 2399-40 n. 13. In Chapman, the Supreme Court, held that (1) a population beyond design capacity, (2) cell space of less than fifty square feet per inmate, and (3) double-celling do not of themselves constitute cruel and unusual punishment. However, in Chapman, the double-celling “did not lead to deprivation of essential food, medical care, or sanitation. Nor did it increase violation among inmates or create other conditions intolerable for prison confinement.” 452 U.S. at 348, 101 S.Ct. at 2399. The Court, therefore, recognized that while overcrowding itself is not a violation of the eighth amendment, overcrowding contributes to the effect of every deficiency in the prisons’ operations. Hoptowit, 682 F.2d at 1249. Overcrowding may cause increased violence, or it may dilute other constitutionally required services so they fall below the minimum eighth amendment standards. For instance, overcrowding may reach a level at which the shelter of the inmates is unfit for human habitation. At some point, “population itself becomes" }, { "docid": "22345910", "title": "", "text": "S.Ct. 285, 290, 50 L.Ed.2d 251 (1976). In determining whether a challenged condition violates “evolving standards of decency,” courts may consider opinions of experts and pertinent organizations. But these opinions will not ordinarily establish constitutional mini-ma. What experts may consider desirable may well constitute appropriate goals to which the other branches may aspire but they do not usually establish those minimums below which the Constitution establishes a prohibition. See Rhodes v. Chapman, supra, 101 S.Ct. at 2400 n.13. Indeed, they weigh less heavily in this determination than what the general public would consider decent. Id. D. Analytical Framework. In analyzing claims of Eighth Amendment violations, the courts must look at discrete areas of basic human needs. As we have recently held, “ ‘[A]n institution’s obligation under the eighth amendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety.’” Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981) (Wright), quoting Wolfish v. Levi, supra, 573 F.2d at 125. In assessing claims of Eighth Amendment violations, and equally importantly, in tailoring a proper remedy, we must analyze each claimed violation in light of these requirements. Courts may not find Eighth Amendment violations based on the “totality of conditions” at a prison. Wright, 642 F.2d at 1132. There is no Eighth Amendment violation if each of these basic needs is separately met. If a challenged condition does not deprive inmates of one of the basic Eighth Amendment requirements, it is immune from Eighth Amendment attack. A number of conditions, each of which satisfy Eighth Amendment requirements, cannot in combination amount to an Eighth Amendment violation. As we have said, however, “[E]ach condition of confinement does not exist in isolation; the court must consider the effect of each condition in the context of the prison environment, especially when the ill-effects of particular conditions are exacerbated by other related conditions.” Id. at 1133. This is no more than a recognition that a particular violation may be the result of several contributing factors. “But the court’s principal focus must be on specific conditions of" }, { "docid": "22367368", "title": "", "text": "eighth amendment violation. See Wright v. Rushen, 642 F.2d at 1133. Plaintiffs contend that Hoptowit v. Ray ignores related conditions by creating a per se rule that enforced idleness does not constitute cruel and unusual punishment. Plaintiffs argue that by applying Hoptow-it’s per se rule, the district court failed to consider related conditions that, when combined with enforced idleness, would create a cruel and inhuman situation. Plaintiffs’ arguments are unpersuasive for several reasons. First, related conditions are those conditions that combine to deprive a prisoner of a discrete basic human need. Hoptowit v. Ray, 682 F.2d at 1246. The discrete basic human needs that prison officials must satisfy include food, clothing, shelter, sanitation, medical care, and personal safety. Id.; Wright v. Rushen, 642 F.2d at 1132-33. Enforced idleness, taken alone, simply does not deprive a prisoner of any of these basic needs. See Hoptowit v. Ray, 682 F.2d at 1254-55. Second, plaintiffs do not identify any related conditions that would support a finding that enforced idleness created an eighth amendment violation in this case. Plaintiffs point to the violence and psychological pain that enforced idleness engenders. Related conditions, however, are not those that result from another condition, but those that in combination create a cruel and unusual punishment. See, e.g., Wright v. Rushen, 642 F.2d at 1134; Spain v. Procunier, 600 F.2d 189,199 (9th Cir.1979). In reality, plaintiffs urge us to hold as a matter of law that “lengthy enforced idleness does not comport with contemporary standards of decency, and that work, educational, and vocational programs are constitutionally mandated.” Plaintiffs, therefore, implicitly ask us to overrule Hoptowit v. Ray and create a per se rule to the contrary. Third, even if we held that enforced idleness in administrative segregation constitutes cruel and unusual punishment, it does not follow that mandating work programs is the appropriate remedy. An injunction must be narrowly tailored to cure the constitutional violation and must not intrude on the functions of state officials unnecessarily. We would violate this principle by holding as a matter of law that provision of work programs is the necessary remedy for" }, { "docid": "18702555", "title": "", "text": "Rules of Civil Procedure. During the conference, plaintiff alleged the following constitutional violations existed at the Lewisburg Penitentiary: inadequate heating system, inadequate ventilation, inadequate living space, inadequate lighting and denial of attendance at group worship; in disciplinary segregation specif ically the denial of personal property for one week and inadequate clothing; in administrative detention specifically the lack of adequate recreational and educational opportunities, limited telephone and television privileges, inadequate access to entertainment and inadequate access to the general library. The court will first consider the plaintiffs request for class certification. The plaintiff has the burden of demonstrating that the requirements of Rule 23 of the Federal Rules of Civil Procedure have been satisfied. The plaintiff has failed to address any of these requirements in his complaint. In addition, in light of the fact that the case will ultimately be dismissed and closed by this Memorandum and Order, the court will deny plaintiffs request for class certification. The plaintiffs Eighth Amendment claims relate to conditions of confinement in the S.H.U. at Lewisburg. The Eighth Amendment standards for the S.H.U. are the same as those which apply to inmates housed in general population. Prison officials must provide all prisoners with adequate food, clothing, shelter, sanitation, medical care and personal safety. Newman v. State of Alabama, 559 F.2d 283, 291 (5th Cir.1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978). See also Wolfish v. Levi, 573 F.2d 118 (2d Cir.1978). The test to determine whether an inmate is subjected to cruel and unusual punishment is whether the resulting conditions, alone or in combination, deprive the inmate of the minimized civilized measure of life’s necessities as measured under contemporary standards of decency. Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). In considering the totality of the circumstances, the court must examine all of the circumstances that bear on the nature of the shelter provided. Union County Jail Inmates v. Di Buono, 713 F.2d 984, 999 (3d Cir.1983) citing Hoptowit v. Ray, 682 F.2d 1237, 1247 (9th Cir.1982). The substance of plaintiff’s claims concerning the conditions" }, { "docid": "1788387", "title": "", "text": "521 (1976)] that deliberate indifference to an inmate’s medical needs is cruel and unusual punishment rested on the fact, recognized by the common law and by state legislatures, that “[a]n inmate must rely on prison authorities to treat his needs; if the authorities fail to do so, his needs will not be met.” These principles apply when the conditions of confinement compose the punishment at issue. Conditions must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment. In Estelle v. Gamble, we held that the denial of medical care is cruel and unusual punishment because, in the worst case, it can result in physical torture, and, even in less serious cases, it can result in pain without any penological purpose. In Hutto v. Finney [437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)] the conditions of confinement .. . constituted cruel and unusual punishment because they resulted in unquestioned and serious deprivations of basic human needs. Conditions, other than those in Gamble and Hutto, alone or in combination, may deprive inmates of the minimal civilized measures of life’s necessities. Such conditions could be cruel and unusual under the contemporary standard of decency we recognized in Gamble. But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society. Rhodes v. Chapman, 452 U.S. 337, 346-347, 101 S.Ct. 2392, 2398-99, 69 L.Ed.2d 59 (1981) (Citations omitted). I adopt this careful and restrained analysis to the issues of this case. I also look to the guidance of Hoptowit v. Ray, 682 F.2d 1237 (9th Cir.1982), Wright v. Rushen, 642 F.2d 1129 (9th Cir.1981) and Spain v. Procunier, 600 F.2d 189 (9th Cir.1979), and apply the analytical framework provided in Hoptowit, supra: In analyzing claims of Eighth Amendment violations, the courts must look at discrete areas of human needs. As we have recently held, “[A]n institution’s obligation" }, { "docid": "1788388", "title": "", "text": "in Gamble and Hutto, alone or in combination, may deprive inmates of the minimal civilized measures of life’s necessities. Such conditions could be cruel and unusual under the contemporary standard of decency we recognized in Gamble. But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society. Rhodes v. Chapman, 452 U.S. 337, 346-347, 101 S.Ct. 2392, 2398-99, 69 L.Ed.2d 59 (1981) (Citations omitted). I adopt this careful and restrained analysis to the issues of this case. I also look to the guidance of Hoptowit v. Ray, 682 F.2d 1237 (9th Cir.1982), Wright v. Rushen, 642 F.2d 1129 (9th Cir.1981) and Spain v. Procunier, 600 F.2d 189 (9th Cir.1979), and apply the analytical framework provided in Hoptowit, supra: In analyzing claims of Eighth Amendment violations, the courts must look at discrete areas of human needs. As we have recently held, “[A]n institution’s obligation upder the eighth amendment is at an end jf it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety.” In assessing claims of Eighth Amendment violations, and equally importantly, in tailoring a proper remedy, we must analyze each claimed violation in light of these requirements. Courts may not find Eighth Amendment violations based on the ‘totality of conditions’ at a prison. There is no Eighth Amendment violation if each of these basic needs is separately met. If a challenged condition does not deprive inmates of one of the basic Eighth Amendment requirements, it is immune from Eighth Amendment attack. A number of conditions, each of which satisfy Eighth Amendment requirements, cannot in combination amount to an Eighth Amendment violation. As we have said, however, “[E]ach condition of confinement does not exist in isolation; the court must consider the effect of each condition in the context of the prison environment, especially when the ill-effects of particular conditions are exacerbated by other related factors.” Hoptowit, supra, at 1246-1247 (Citations omitted, emphasis added)." }, { "docid": "18299592", "title": "", "text": "decency” embodied in the eighth amendment. Chapman, 452 U.S. at 348 n. 13, 101 S.Ct. at 2399-40 n. 13. In Chapman, the Supreme Court, held that (1) a population beyond design capacity, (2) cell space of less than fifty square feet per inmate, and (3) double-celling do not of themselves constitute cruel and unusual punishment. However, in Chapman, the double-celling “did not lead to deprivation of essential food, medical care, or sanitation. Nor did it increase violation among inmates or create other conditions intolerable for prison confinement.” 452 U.S. at 348, 101 S.Ct. at 2399. The Court, therefore, recognized that while overcrowding itself is not a violation of the eighth amendment, overcrowding contributes to the effect of every deficiency in the prisons’ operations. Hoptowit, 682 F.2d at 1249. Overcrowding may cause increased violence, or it may dilute other constitutionally required services so they fall below the minimum eighth amendment standards. For instance, overcrowding may reach a level at which the shelter of the inmates is unfit for human habitation. At some point, “population itself becomes an unnecessary or wanton infliction of pain.” Id. I may remedy only the specific conditions that violate the constitution. Id. at 1247. A remedy may go beyond this only when there is a record of past constitutional violations and violations of past orders. See Hutto v. Finney, 437 U.S. 678, 687, 98 S.Ct. 2565, 2571, 57 L.Ed.2d 522 (1978). In ordering a remedy, I must consider the cost of compliance and the effect on the legitimate security needs of the prison. Hoptowit, 682 F.2d at 1247; Wright, 642 F.2d at 1134. I should defer to the policy choices made by prison officials and order a remedy consistent with the basic approach taken by the officials unless that approach is inconsistent with the eighth amendment. 682 F.2d at 1247. My task is limited to enforcing constitutional standards and does not embrace superintending prison administration. Ruiz, 679 F.2d at 1126. With these considerations in mind, I turn to the specific challenged conditions. III. SPECIFIC. CONDITIONS CHALLENGED BY INMATES A. Violence and Guard Behavior 1. Violence. An inmate" }, { "docid": "22379289", "title": "", "text": "holding that the Eighth Amendment ... is, inter alia, intended to protect and safeguard a prison inmate from an environment where degeneration is probable and self-improvement unlikely because of the conditions existing which inflict needless suffering, whether physical or mental.” In affirming the district court’s finding there that overcrowding in the Oklahoma State Penitentiary violated the inmates’ Eighth Amendment rights, we held “that while an inmate does not have a federal constitutional right to rehabilitation, he is entitled to be confined in an environment which does not result in his degeneration or which threatens his mental and physical well being.” Id. at 401, 403. The district court and the plaintiffs rely to some degree on this language from Battle to support the conclusion that a constitutional violation occurred here. See 485 F.Supp. at 133, 156; Brief of Appellee at 43, 101. The State and the amicus say that it was error to apply the “degeneration standard” from Battle, error which taints the finding that the totality of conditions at Old Max violate the Eighth Amendment. They urge that we adopt instead the standard enunciated in Newman v. Alabama, 559 F.2d 283, 291 (5th Cir.), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160: If the State furnishes its prisoners with reasonably adequate food, clothing, shelter, sanitation, medical care, and personal safety so as to avoid the imposition of cruel and unusual punishment, that ends its obligation under Amendment Eight. See Brief of Appellant at 27-33; Reply Brief of Appellant at 6, 9-11; Brief Amicus Curiae at 8-9, 11-14. We see no conflict between our decision in Battle and the Fifth Circuit’s decision in Newman. The standard announced in Battle concerned degeneration in relation to the entire penal environment — the conditions of confinement. These conditions were not identified in Battle beyond inadequate cell space. We conclude that in the areas of shelter, sanitation, food, personal safety, and medical care — the core areas in any Eighth Amendment claim — the district court’s findings and conclusions of violations of the plaintiffs’ rights are entirely justified and supported by the" }, { "docid": "1788397", "title": "", "text": "with adequate food, clothing, shelter, sanitation, medical care, and personal safety.” See Hoptowit at 1246. In the present case there has been no challenge to the adequacy of the food. I have earlier dealt with the personal safety and medical care issues in this case. The present issue is the adequacy of “clothing, shelter, and sanitation” at the Umatilla County Jail, and whether minimum conditions have been met. 1. Adequate Shelter At relevant times in the past, the jail has been unfit for human habitation. Some of the problems with the facility have been ameliorated by the actions of Sheriff Carey both before and after the filing of this suit. However, major problems remain. One major problem which involves both “shelter” and “sanitation” has been the overflow of sewage into the cells. This constitutes a major threat to health and constitutes cruel and unusual punishment, proscribed by the Eighth Amendment, and punishment proscribed by the Fourteenth Amendment, to sentenced and unsentenced inmates respectively. Functioning plumbing, including toilets, sinks and showers, is a basic necessity of civilized life. The provision of adequate means of hygiene, and the sanitary disposal of bodily wastes so that the wastes do not contaminate the cells, are constitutionally required. Ramos v. Lamm, 639 F.2d 559, 569 (10th Cir.1980); cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Gates v. Collier, 501 F.2d 1291, 1300-1302 (5th Cir.1974). This is so because the facility’s obligation to provide basic minima of shelter and sanitation will otherwise not be satisfied. Id.; Dimarzo v. Cahill, 575 F.2d 15, 16-19 (1st Cir.1978), cert. denied, 439 U.S. 927, 99 S.Ct. 312, 58 L.Ed.2d 320 (1978); see also Johnson v. Levine, 450 F.Supp. 648, 656 (D.Md.1978), affirmed, 588 F.2d 1378 (4th Cir.1978) (en banc); Valentine v. Englehardt, 474 F.Supp. 294, 296-297 (D.N.J.1979); Pugh v. Locke, 406 F.Supp. 318, 323-324 (M.D.Ala. 1976). I find that the conditions which I have described impose “cruel and unusual” punishment upon convicted persons and impose “punishment” upon pre-trial detainees. Another basic minimum of “adequate shelter” is a means for heating the cells in winter, and cooling" }, { "docid": "22345944", "title": "", "text": "subjected were cruel and unusual. He included small cells, inadequate recreation and legal access, and disqualification from prison programs as elements of the violation. He ordered the State to comply with the ACA standards relating to the housing of prisoners in segregation and protective custody. We conclude these findings are not clearly erroneous and that the district judge did not err in his specific conclusion that the isolation cells with the closed metal doors constitute cruel and unusual punishment. The deprivation of nearly all fresh air and light, particularly when coupled with the guard’s control over the window and the electric light, creates an extreme hazard to the physical and mental well-being of the prisoner. In addition, the district judge could properly conclude that the inadequate access to medical care and inherent sanitary problems in these cells when the door and its window are closed constitute cruel and unusual punishment, and that the use of this isolation cell is an unnecessary and wanton infliction of pain, without peno-logical justification. The Eighth Amendment standards for conditions in isolation, segregation, and protective custody cells are no different from standards applying to the general population. Prison officials may not deprive prisoners of the basic necessities of life protected by the Eighth Amendment by placing them in different forms of detention. Prison officials must provide all prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety. See Wolfish v. Levi, supra, 573 F.2d at 125. To deprive prisoners in isolation, segregation, or protective custody of any of these violates the Eighth Amendment. Of course, in considering whether a prisoner has been deprived of his rights, courts may consider the length of time that the prisoner must go without these benefits. See Hutto v. Finney, supra, 437 U.S. at 685, 98 S.Ct. at 2570. The longer the prisoner is without such benefits, the closer it becomes to being an unwarranted infliction of pain. Compare Spain v. Procunier, supra, 600 F.2d at 199 (Eighth Amendment requires prisoners confined to their cells 24 hours a day to have regular outdoor exercise) with Hayward v. Procunier," }, { "docid": "1788396", "title": "", "text": "access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983. Estelle v. Gamble, 429 U.S. 97, 102-106, 97 5. Ct. 285, 290-92, 50 L.Ed.2d 251 (1976) (Citations and footnotes omitted). Under this standard it is clear that the health care system at the Umatilla County Jail violates the Eighth Amendment. The system results in inmates’ suffering needlessly without medical care, and in the arbitrary and purposeless infliction of pain without penological justification. I am required to find that this system violates the Eighth Amendment as to sentenced prisoners and imposes “punishment” upon pre-trial detainees. C. The Conditions of Confinement Have Been Inhumane and Indecent, Have Endangered the Health of Prisoners, and Constitute a Violation of the Eighth Amendment On this issue I am guided by the teaching of Wright v. Rushen, supra, and Hoptowit, supra, that “an institution’s obligation under the eighth amendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety.” See Hoptowit at 1246. In the present case there has been no challenge to the adequacy of the food. I have earlier dealt with the personal safety and medical care issues in this case. The present issue is the adequacy of “clothing, shelter, and sanitation” at the Umatilla County Jail, and whether minimum conditions have been met. 1. Adequate Shelter At relevant times in the past, the jail has been unfit for human habitation. Some of the problems with the facility have been ameliorated by the actions of Sheriff Carey both before and after the filing of this suit. However, major problems remain. One major problem which involves both “shelter” and “sanitation” has been the overflow of sewage into the cells. This constitutes a major threat to health and constitutes cruel and unusual punishment, proscribed by the Eighth Amendment, and punishment proscribed by the Fourteenth Amendment, to sentenced and unsentenced inmates respectively. Functioning plumbing, including toilets, sinks and showers, is a basic necessity of" }, { "docid": "18574981", "title": "", "text": "determine whether the infliction of pain was “unnecessary and wanton.” Jordan v. Gardner, 986 F.2d 1521, 1525-28 (9th Cir.1993) (en banc). In considering whether the objective component has been met, the Court must focus on discrete and essential human needs such as health, safety, food, warmth or exercise. Wilson, 501 U.S. at 304, 111 S.Ct. at 2327. “Courts may not find Eighth Amendment violations based on the ‘totality of conditions’ at a prison.” Hoptowit, 682 F.2d at 1246 (quoting Wright v. Rushen, 642 F.2d 1129, 1132 (9th Cir.1981)). Thus, while courts may consider conditions in combination “when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need ...[,] [n]othing so amorphous as ‘overall conditions’ can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists.” Wilson, 501 U.S. at 304-05, 111 S.Ct. at 2327. The question whether the objective component of an Eighth Amendment claim has been met presents an issue of law for the court to decide. Hickey v. Reeder, 12 F.3d 754, 756 (8th Cir.1993). In contrast, the state of mind inquiry presents a question of fact, and is “subject to demonstration in the usual ways, including inference from circumstantial evidence.” Farmer, — U.S. at —, 114 S.Ct. at 1981. For most Eighth Amendment claims, the plaintiff satisfies the culpability requirement by proving that the defendants’ actions (or omissions) constitute “deliberate indifference.” This “baseline” standard, Jordan, 986 F.2d at 1527, applies in cases alleging inadequate protection from injury from other inmates or inhumane conditions of confinement that deprive an inmate of a basic necessity of life, such as shelter, food, health or exercise. See Farmer, — U.S. at —, 114 S.Ct. at 1977; Jordan, 986 F.2d at 1528. As the Supreme Court recently clarified, the test for determining “deliberate indifference” is essentially equivalent to the standard for establishing subjective recklessness in criminal cases. Farmer, — U.S. at —, 114 S.Ct. at 1980. Thus, the plaintiff must show that: the [prison] official knows of and disregards an excessive risk to inmate health or safety;" }, { "docid": "22367367", "title": "", "text": "arrive at the desired result, plaintiffs believe that two logical steps must be tak en. First, plaintiffs urge us to clarify the language in our prior opinions regarding the proper framework for analyzing an alleged eighth amendment violation. Second, plaintiffs urge us to reject or limit our holding in Hoptowit v. Ray regarding idleness. In Hoptowit v. Ray, we considered the eighth amendment analytical framework at length. See 682 F.2d at 1246-47. Our discussion leads to the undeniable conclusion that we follow the “related conditions” approach urged by plaintiffs. Plaintiffs object, however, to one statement in Hoptowit. In Hoptowit we stated, inter alia, that “[a] number of conditions, each of which satisfy Eighth Amendment requirements, cannot in combination amount to an Eighth Amendment violation.” 682 F.2d at 1247. To the extent that this sentence creates uncertainty or ambiguity regarding the analytical framework employed in this circuit, such uncertainty or ambiguity may be rectified easily. We meant that a number of unrelated conditions, each of which satisfy eighth amendment requirements, cannot in combination amount to an eighth amendment violation. See Wright v. Rushen, 642 F.2d at 1133. Plaintiffs contend that Hoptowit v. Ray ignores related conditions by creating a per se rule that enforced idleness does not constitute cruel and unusual punishment. Plaintiffs argue that by applying Hoptow-it’s per se rule, the district court failed to consider related conditions that, when combined with enforced idleness, would create a cruel and inhuman situation. Plaintiffs’ arguments are unpersuasive for several reasons. First, related conditions are those conditions that combine to deprive a prisoner of a discrete basic human need. Hoptowit v. Ray, 682 F.2d at 1246. The discrete basic human needs that prison officials must satisfy include food, clothing, shelter, sanitation, medical care, and personal safety. Id.; Wright v. Rushen, 642 F.2d at 1132-33. Enforced idleness, taken alone, simply does not deprive a prisoner of any of these basic needs. See Hoptowit v. Ray, 682 F.2d at 1254-55. Second, plaintiffs do not identify any related conditions that would support a finding that enforced idleness created an eighth amendment violation in this case. Plaintiffs" }, { "docid": "12296604", "title": "", "text": "1237, 1246 (9th Cir.1982). But public perceptions are not alone conclusive. In the cogent words of Chief Justice Warren, “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man.” Trop, 356 U.S. at 100, 78 S.Ct. at 597; see Gregg v. Georgia, 428 U.S. 153, 178, 96 S.Ct. 2909, 2927, 49 L.Ed.2d 859 (1976) (plurality opinion). In the context of cases challenging prison conditions, courts in this circuit and others have commented that “[a]n institution’s obligation under the eighth amendment is at- an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care and personal safety.” Hoptowit, 682 F.2d at 1246; Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir.1981); Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir.1978), rev’d on other grounds, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); see also Newman v. State of Alabama, 559 F.2d 283, 286 (5th Cir.1977), rev’d in part on other grounds sub nom. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978). Of course, this enumeration is not necessarily exhaustive. For example, it is settled that prisoners may not be deprived of all exercise, because “some form of regular outdoor exercise is extremely important to the psychological and physical well-being of the inmates.” Spain v. Procunier, 600 F.2d 189, 199 (9th Cir.1979) (citing cases); Ruiz v. Estelle, 679 F.2d 1115, 1152 & n. 173 (5th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983); Martino v. Carey, 563 F.Supp. 984, 1001 (D.Ore.1983). The task before the Court is to examine .each specific challenged condition of confinement and to determine whether that condition, in the context of the overall prison environment, comports with human decency. Wright v. Rushen, 642 F.2d at 1133. If found indecent, the condition must be remedied. However, the relief granted must be only so much as is required to correct the specific deficiency. Hoptowit, 682 F.2d at 1247; Wright, 642 F.2d at 1134. II. FINDINGS OF FACT 1. San Quentin and Folsom are among the oldest penal institutions still" }, { "docid": "1788407", "title": "", "text": "exercise in this case violates the Eighth Amendment as to convicted prisoners and imposes “punishment” upon pre-trial detainees, see Bell v. Wolfish, supra, 441 U.S. at 545, 99 S.Ct. at 1877. 5. Overcrowding At times the Umatilla County Jail has been severely overcrowded. While overcrowding may not be an Eighth Amendment violation per se its impact upon the jail may result in the denial of “adequate food, clothing, shelter, sanitation, medical care, and personal safety,” Hoptowit, supra, at 1246, 1248-1249. See also Campbell v. McGruder, 580 F.2d 521, 536—540 (D.C.Cir.1978) (Overcrowding a per se violation on facts of that case); Lareau v. Manson, 651 F.2d 96, 102-103 (2nd Cir.1981) (Excellent analysis of Supreme Court precedent; conclusion that overcrowding is “punishment” which may not be imposed upon pre-trial detainee; Lareau is cited with approval in Hoptowit, supra, at 1248). Overcrowding at the jail, which has occurred in the past at summer's end has resulted in situations in which prisoners have been denied adequate shelter, clothing, sanitation, medical care, and personal safety. An insufficient number of beds required detainees to sleep on the floor, where they have been subject to the overflow of filthy water in the cells. Overcrowding has overtaxed the laundry so that adequate clothing has not been available. Overcrowding has resulted in an increase in violence in the cells as inmates quarrelled over scarce resources and suffered from the increased tension which overcrowding causes. Overcrowding has also made any classification of prisoners impossible, thus putting the weak in cells with violent and aggressive inmates and has deprived inmates of adequate personal safety. Overcrowding has also deprived inmates of adequate medical care, because it has resulted in an increased spread of infectious diseases which the medical system was unable to handle. Overcrowding at the jail has resulted in Eighth Amendment violations and the imposition of clearly punitive conditions upon pretrial detainees, see, Hoptowit, supra, at 1249; Lareau, supra at 103. D. Inmates Have Been Denied Minimum Due Process in the Jail’s Disciplinary Proceedings An inmate who is subject to disciplinary action such as solitary imprisonment, disciplinary segregation, or loss of" }, { "docid": "18299584", "title": "", "text": "curiam order). B. Capps/West II Following the court of appeal’s remand order, the State filed a motion asking me to abstain pending the resolution of the state law claims in Armstrong v. Cupp, No. 121,599 (Marion County Cir.Ct., petition for habeas corpus filed July 22, 1980). I declined to stay the proceeding at this late stage largely because the state court ruling could not eliminate all of the federal constitutional claims. (Unpublished opinion). Hoptowit v. Ray, 682 F.2d 1237, 1245 n. 2 (9th Cir.1982); see Manney v. Cabell, 654 F.2d 1280 (9th Cir.1980). In Capps/West I, I assumed, in the' absence of case authority to the contrary or other appellate court guidance, that a court could consider the generalized impact of overcrowding on the penological effective ness of the challenged institutions. I am no longer without that authority or guidance. Wright and Hoptowit make it clear that a court faced with a comprehensive challenge to prison conditions must examine articulable, quantifiable conditions to see whether these discrete conditions violate eighth amendment standards. But see Smith v. Fairman, 690 F.2d 122, 125 (7th Cir.1982); Ruiz v. Estelle, 679 F.2d 1115, 1139-40 (5th Cir.1982). But each condition of confinement does not exist in a vacuum. A particular unconstitutional condition, such as excessive violence, may be the result of several contributing factors. Hoptowit, 682 F.2d at 1247. At my request, the inmates submitted a proposed sequence for taking additional testimony about the separate conditions. The six areas selected for hearings were: 1. Violence and Guard Behavior 2. Segregation and Isolation 3. Shelter and Sanitation/Physical Plant 4. Idleness/Classification 5. Mental Health Care and Counseling 6. Medical Care These topics were derived from Wright, 642 F.2d at 1132-33, quoting Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir.1978), rev’d on other grounds sub nom. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979): “an' institution’s obligation under the eighth amendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety.” See Hoptowit, 682 F.2d at 1246. The State’s denial of one" }, { "docid": "7824390", "title": "", "text": "ill-maintained” physical plant have “serious health implications.” Hoptowit I, 682 F.2d at 1256. More specifically, the district judge found: overcrowding, substandard lighting, unsatisfactory plumbing, substandard fire prevention, substandard food service, vermin infestation, lack of an effective maintenance program, inadequate ventilation, safety hazards in the occupational areas, unavailable or inadequate cell cleaning supplies. We affirmed these findings of fact, except the finding regarding overcrowding. Id. On the basis of these findings, the district court concluded that “the general condition of [the penitentiary’s] physical facilities when considered in their totality ... falls below minimum standards of decency and conditions of confinement and violates [plaintiffs’ Eighth Amendment rights.” Id. We reversed this conclusion of law on the ground that the district court improperly applied the “totality of conditions” analysis. We instructed the district court on remand to “consider each finding and decide whether each condition amounts to an unnecessary and wanton infliction of pain.” Id. We added: “Of course, each condition can be considered in light of other conditions.” Id. The district court followed this direction, and concluded that each of several of the conditions did violate the Eighth Amendment. On this appeal, the State attacks the district court’s legal conclusions as to several of these conditions. We review these conclusions de novo. Hoptowit I, 682 F.2d at 1245. A. Inadequate Lighting. Adequate lighting is one of the fundamental attributes of “adequate shelter” required by the Eighth Amendment. The district court’s conclusion that the lighting at the penitentiary violated the amendment is based upon evidence that the lighting was so poor that it was inadequate for reading and caused eyestrain and fatigue and hindered attempts to insure that basic sanitation was maintained. We uphold the district court’s conclusion. B. Plumbing. Plumbing at the penitentiary is in such disrepair as to deprive inmates of basic elements of hygiene and seriously threaten their physical and mental well-being. Such conditions amount to cruel and unusual punishment under the Eighth Amendment. Ramos v. Lamm, 10 Cir., 1980, 639 F.2d 559, 567-69; Gates v. Collier, 5 Cir., 1974, 501 F.2d 1291, 1300-03. We uphold the district court’s conclusion." }, { "docid": "1788389", "title": "", "text": "upder the eighth amendment is at an end jf it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety.” In assessing claims of Eighth Amendment violations, and equally importantly, in tailoring a proper remedy, we must analyze each claimed violation in light of these requirements. Courts may not find Eighth Amendment violations based on the ‘totality of conditions’ at a prison. There is no Eighth Amendment violation if each of these basic needs is separately met. If a challenged condition does not deprive inmates of one of the basic Eighth Amendment requirements, it is immune from Eighth Amendment attack. A number of conditions, each of which satisfy Eighth Amendment requirements, cannot in combination amount to an Eighth Amendment violation. As we have said, however, “[E]ach condition of confinement does not exist in isolation; the court must consider the effect of each condition in the context of the prison environment, especially when the ill-effects of particular conditions are exacerbated by other related factors.” Hoptowit, supra, at 1246-1247 (Citations omitted, emphasis added). The appropriate approach in this case is to first examine specific conditions separately and then complete the analysis by analyzing the manner in which any violative condition interrelates to exacerbate other such conditions. This approach is in accord with Supreme Court precedent: Read in its entirety, the District Court’s opinion makes it abundantly clear that the length of isolation sentences was not considered in a vacuum.... The court took note of the inmates’ diet, the continued overcrowding, the rampant violence, the vandalized cells, and the “lack of professionalism and good judgment on the part of maximum security personnel.” The length of time each inmate spent in isolation was simply one consideration among many. We find no error in the court’s conclusion that, taken as a whole, conditions in the isolation cells continued to violate the prohibition against cruel and unusual punishment. Hutto v. Finney, supra, 437 U.S. at 685-687, 98 S.Ct. at 2570-71 (Citations omitted; emphasis added). I therefore do not apply the simplistic “totality of conditions” analysis decried by Wright v. Rushen, supra, but" }, { "docid": "18299585", "title": "", "text": "v. Fairman, 690 F.2d 122, 125 (7th Cir.1982); Ruiz v. Estelle, 679 F.2d 1115, 1139-40 (5th Cir.1982). But each condition of confinement does not exist in a vacuum. A particular unconstitutional condition, such as excessive violence, may be the result of several contributing factors. Hoptowit, 682 F.2d at 1247. At my request, the inmates submitted a proposed sequence for taking additional testimony about the separate conditions. The six areas selected for hearings were: 1. Violence and Guard Behavior 2. Segregation and Isolation 3. Shelter and Sanitation/Physical Plant 4. Idleness/Classification 5. Mental Health Care and Counseling 6. Medical Care These topics were derived from Wright, 642 F.2d at 1132-33, quoting Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir.1978), rev’d on other grounds sub nom. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979): “an' institution’s obligation under the eighth amendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety.” See Hoptowit, 682 F.2d at 1246. The State’s denial of one of these basic needs violates society’s sense of decency because it wantonly inflicts pain. From June through November 1982, I held hearings at which dozens of inmates at OSP, OSCI, and the Annex, staff members, and finally expert witnesses testified. The evidence taking sessions involving inmate and most staff testimony were held at the Marion County Courthouse and the Capitol Building in Salem. Expert (and some staff) testimony was taken at the U.S. Courthouse in Portland. In addition, with counsel’s consent; I inspected OSP and OSCI once by myself without advance notice, and once with counsel. The surprise visit was to observe the institutions operations in a fashion which, might' serve to reduce the temptation on the part of some staff or inmates to posture for my benefit. While my impression was that this effort was not entirely successful, such posturing as may have occurred has not affected my findings and conclusion. The State objected, often in strenuous terms, to these unitary proceedings. However, these hearings were not held to cure factual deficiencies in the" } ]

[ { "docid": "6508378", "title": "", "text": "as previously noted, the reclaiming seller must establish the requirements of the relevant U.C.C. section and remains subject to its limitations. Pursuant to U.C.C. § 2-702(3), the seller’s right to reclamation is “subject to” the rights of a good faith purchaser from the buyer. Pester, 964 F.2d at 844; In re Leeds Building Products, Inc., 141 B.R. 265, 268 (Bankr.N.D.Ga.1992); Video King, 100 B.R. at 1016; Sandoz Pharmaceuticals Corp. v. Blinn Wholesale Drug Co., Inc. (In re Blinn Wholesale Drug Co., Inc.), 164 B.R. 440, 443 (Bankr.E.D.N.Y.1994); Victory Markets, 212 B.R. at 742. That the right of a reclaiming creditor is subordinate to that of a good faith purchaser does not automatically extinguish the reclamation right. Pester, 964 F.2d at 846. Rather, the reclaiming creditor is “relegated to some less commanding station.” Leeds, 141 B.R. at 268. Most courts have treated “a holder of a prior perfected, floating lien on inventory ... as a good faith purchaser with rights superior to those of a reclaiming seller.” See Victory Markets, 212 B.R. at 742 (citing, Stowers v. Mahon (In re Samuels & Co.), 526 F.2d 1238, 1242-43 (5th Cir.1976)); In re Child World, Inc., 145 B.R. 5, 7 (Bankr.S.D.N.Y.1992); Blinn Wholesale Drug, 164 B.R. at 443; Isaly Klondike Co. v. Sunstate Dairy & Food Products Co. (In re Sunstate Dairy & Food Products Co.), 145 B.R. 341, 344 (Bankr.M.D.Fla.1992); Leeds, 141 B.R. at 268. See also House of Stainless, Inc v. Marshall & Ilsley Bank, 75 Wis.2d 264, 273, 249 N.W.2d 561, 567 (1977) (citing, In re Hayward Woolen Co., 3 U.C.C.Rep. Serv. 1107, 1111-12 (Bankr.D.Mass.1967); First-Citizens Bank & Trust Co. v. Academic Archives, 10 N.C.App. 619, 624, 179 S.E.2d 850, 853 (1971); Guy Martin Buick, Inc. v. Colorado Springs Nat. Bank, 184 Colo. 166, 519 P.2d 354, 358 (1974)). But see In re American Food Purveyors, Inc., 17 U.C.C.Rep.Serv. (CBC) 436 (Bankr.N.D.Ga.1974). Galey argues that the courts that have found parties with secured interests in inventory to be good faith purchasers have merely referred to the definitions of good faith purchaser under the U.C.C. § 1-201(19), (32), and (33). Galey" } ]

[ { "docid": "1086291", "title": "", "text": "the letter’s status as a satisfactory U.C.C. § 2-702 reclamation demand. B. Seller’s Reclamation Right When There Is A Perfected Security Interest In the Goods As straightforward as Section 546(c) reads, courts have split over whether the seller’s right of reclamation is still available when there is a creditor with a perfected security interest in the buyer/debtor’s inventory. Some courts have held that a seller’s reclamation interest is “extinguished” by a secured creditor claim, while other courts have held that the seller’s reclamation right is not extinguished but merely subordinated to the secured creditor’s claim. See For cases holding seller’s right is not extinguished: In re Leeds Building Products, Inc., 141 B.R. 265 (Bankr N.D.Ga.1992); In re Pester Refining Co., 964 F.2d 842, 846 (8th Cir.1992); In re Bosler Supply Group, 74 B.R. 250 (N.D.Ill.1987); In re Roberts Hardware Co., 103 B.R. 396 (Bankr.N.D.N.Y.1988); For cases holding seller’s right is extinguished: In re Shattuc Cable Corp., 138 B.R. 557 (Bankr.N.D.Ill.1992); In re Coast Trading Co., 744 F.2d 686 (9th Cir.1984). This court finds that to extinguish Dynascan’s right of reclamation without granting an alternative remedy would provide an inequitable solution. Although Dy-nascan has fulfilled the requirements of § 546(c) to reclaim the goods, reclamation is impossible because the goods have already been sold. In In re Griffin Retreading Co., a strikingly similar situation was presented. 795 F.2d 676 (8th Cir.1986). In Griffin, the regular supplier of a tire retreading company shipped a supply of rubber to the tire company. Id. On the day after the shipment was received, the tire company filed for bankruptcy. Id. The supplier promptly demanded reclamation of the shipment pursuant to U.C.C. § 2-702, but the company failed to return the shipment and subsequently sold the goods in the ordinary course of business. Id. The Eighth Circuit Court of Appeals, in affirming the District Court, held that a reclaiming seller creditor that meets all the tests under § 546(c) for reclamation is entitled to either an administrative expense priority or secured lien when a right of reclamation is made impossible because the properly reclaimed goods were" }, { "docid": "14515724", "title": "", "text": "and State Bank of New South Wales, Ltd. had prior perfected floating liens on the Debtor’s inventory on the date that Imperial asserted its right of reclamation. Imperial has not disputed this assertion, nor has it argued that either entity is not a good faith purchaser. Therefore, both C & S 'Wholesalers, Inc. and State Bank of New South Wales, Ltd. are deemed to have been good faith purchasers with rights superior to those of Imperial as a reclaiming seller as of September 20, 1995. See, e.g., Sunstate Dairy & Food Prods., 145 B.R. at 344. Since there are prior perfected security interests in the Goods that Imperial seeks to reclaim, Imperial’s claim is necessarily subordinated, but is not automatically extinguished. Rather, Imperial’s claim is relegated to “some less commanding station.” In re Wathen’s Elevators, Inc., 32 B.R. 912, 923 (Bankr.W.D.Ky.1983); see Leeds Bldg. Prods., 141 B.R. at 268; Pillsbury Co. v. FCX, Inc. (In re FCX, Inc.), 62 B.R. 315, 322 (Bankr.E.D.N.C.1986). What this “station” is, however, has been the subject of divergent judicial opinions. Some courts have held that where reclamation is denied, the seller is entitled to an administrative priority claim or a lien in the full amount of the reclamation claim. See, e.g., American Saw & Mfg. Co. v. Bosler Supply Group (In re Bosler Supply Group), 74 B.R. 250, 254-55 (N.D.Ill.1987); Sunstate Dairy & Food Prods., 145 B.R. at 345-6; Diversified Food Serv. Distribs., 130 B.R. at 430. Other courts have held that any right of a seller to reclamation is extinguished if there is a prior secured creditor, thereby precluding any remedy of an administrative priority claim or lien under Code § 546(c)(2)(A). See, e.g., In re Coast Trading Co., 744 F.2d 686 (9th Cir.1984); In re Shattuc Cable Corp., 138 B.R. 557, 562 (Bankr.N.D.Ill.1992), overruled by In re Reliable Drug Stores, Inc., 70 F.3d 948 (7th Cir.1995). Yet another interpretation requires a seller to first establish its right of reclamation and then requires that the seller establish the value of that right in order to determine the amount of the administrative claim or" }, { "docid": "14515725", "title": "", "text": "opinions. Some courts have held that where reclamation is denied, the seller is entitled to an administrative priority claim or a lien in the full amount of the reclamation claim. See, e.g., American Saw & Mfg. Co. v. Bosler Supply Group (In re Bosler Supply Group), 74 B.R. 250, 254-55 (N.D.Ill.1987); Sunstate Dairy & Food Prods., 145 B.R. at 345-6; Diversified Food Serv. Distribs., 130 B.R. at 430. Other courts have held that any right of a seller to reclamation is extinguished if there is a prior secured creditor, thereby precluding any remedy of an administrative priority claim or lien under Code § 546(c)(2)(A). See, e.g., In re Coast Trading Co., 744 F.2d 686 (9th Cir.1984); In re Shattuc Cable Corp., 138 B.R. 557, 562 (Bankr.N.D.Ill.1992), overruled by In re Reliable Drug Stores, Inc., 70 F.3d 948 (7th Cir.1995). Yet another interpretation requires a seller to first establish its right of reclamation and then requires that the seller establish the value of that right in order to determine the amount of the administrative claim or lien to which it is entitled under Code § 546(c). See, e.g., Video King, 100 B.R. at 1016. This Court finds, as it did in Roberts Hardware, that while the right of reclamation is subject to superior perfected claims of other creditors, this subordination does not automatically result in the extinguishment of the seller’s reclamation claim. See Roberts Hardware, 103 B.R. at 398. However, a reclaiming seller is also not automatically entitled to an administrative priority claim or substitute lien in the entire amount of its claim merely because the seller’s right of reclamation is subject to a superior perfected claim. See Leeds Bldg. Prods., 141 B.R. at 269; FCX, 62 B.R. at 322. Instead, the reclaiming seller retains a priority interest in any goods remaining and in any surplus proceeds remaining after the superior secured creditor’s interests have been satisfied or released. See Pester Refining Co. v. Ethyl Corp. (In re Pester Refining Co.), 964 F.2d 842, 846 (8th Cir.1992). If the seller’s right to reclaim is worthless because the superior secured creditor’s claim" }, { "docid": "1086301", "title": "", "text": "proceeding within three days of making its reclamation demand. Therefore, only the first requirement — that of Klondike’s statutory or common law right to reclaim the ice cream — remains for decision by this Court. Section 672.702(2) of the Florida Statutes provides the statutory basis for Klondike’s assertion of a right of reclamation. As stipulated, Klondike discovered that Debtor received the ice cream bars on credit while insolvent and made a reclamation demand within 10 days of Debtor’s receipt of the ice cream bars. Section 672.-702(3) of the Florida Statutes, however, limits any right of reclamation when there has been an intervening buyer in ordinary course or other good faith purchaser. Here, Klondike’s right of reclamation is limited because Barclays qualifies as a good faith purchaser. Klondike does not really question whether Barclays became a good faith purchaser in 1990 when Debtor executed the Loan and Security Agreement. Klondike’s argument is that denominating Barclays or any other lienholder with a preexisting, perfected floating lien on inventory as a good faith purchaser eviscerates the statutorily granted right of reclamation. Absent some showing of bad faith, however, there is not much room to debate that a lienholder with a preexisting, perfected floating lien on inventory is a good faith purchaser with rights superior to those of a reclaiming seller. See, e.g., Stowers v. Mahon (In re Samuels & Co.), 526 F.2d 1238, 1242-1243 (5th Cir.), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976); Lavonia Mfg. Co. v. Emery Corp., 52 B.R. 944, 946 (E.D.Pa.1985); In re Diversified Food Serv. Distribs., 130 B.R. 427, 429 (Bankr.S.D.N.Y.1991). See, also, 4 Collier on Bankruptcy, ¶ 546.04 at 546-20—546-21. Klondike attempts to avoid the limitation of Section 672.702(3) of the Florida Statutes arguing that a change in statutory language which predates this case removes Barclays from the ambit of Section 672.-702(3). Section 672.702(3) of the Florida Statutes formerly provided the reclaiming seller’s right of reclamation was subject not only to the rights of a buyer in ordinary course or other good faith purchaser but also to the rights of a lien creditor." }, { "docid": "16767581", "title": "", "text": "before the reclaiming sellers filed their present motion pursuant to 11 U.S.C. § 542(c). The reclaiming sellers now maintain that their right to the proceeds of sale, to the extent of their unpaid claims in the sum of $4,623.35, is superior to CIT’s perfected floating lien on Diversified’s inventory- The reclaiming sellers place great reliance on Ray-O-Vac v. Daylin, Inc. (In re Daylin, Inc.), 596 F.2d 853 (9th Cir.1979). However, that case was decided under the repealed Bankruptcy Act of 1938, as amended, and merely held that a reclaiming unpaid seller could assert U.C.C. § 2-702 and prevail over a debtor in possession or a trustee in bankruptcy. The Daylin case did not address the issue as to a reclaiming seller’s status vis-a-vis a previously perfected inventory lien creditor. The Daylin case was the forerunner to the adoption of 11 U.S.C. § 546(c) under the current Bankruptcy Code, which simply codifies the holding in that case and resolved a dispute under the former Bankruptcy Act as to whether a reclaiming seller’s rights amounted to a disguised statutory lien or preference. Although the Bankruptcy Code specifically authorizes an unpaid seller to reclaim merchandise under express limitations delineated in 11 U.S.C. § 546(c), that right may not be asserted to defeat the interests of previously perfected inventory lien creditors. The right of reclamation from a breaching buyer is subordinate to those of previously perfected lien creditors, who are regarded in the same fashion as good faith purchasers whose rights are also superior to those of reclaiming sellers. Collingwood Grain, Inc. v. Coast Trading Company (In re Coast Trading Co., Inc.), 744 F.2d 686 (9th Cir.1984); Stowers v. Mahon (In re Samuels & Co., Inc.), 526 F.2d 1238 (5th Cir.1976) (en banc), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976); In re Roberts Hardware Co., 103 B.R. 396 (Bankr.N.D.N.Y.1988). Indeed, the reclaiming sellers’ demand for the proceeds of the auction sale, to the extent of their unpaid bills, is not consistent with the reclamation right authorized under 11 U.S.C. § 546(c) and U.C.C. § 2-702. As stated by Judge" }, { "docid": "1339135", "title": "", "text": "system of laws to govern their rights and duties. The stipulation in the security agreement is controlling only for disputes between the bank and the elevator. These two parties cannot dictate the controlling law for ancillary disputes, such as this one, which involves the rights of third parties. Additionally, the reclaiming sellers are asserting statutory rights as defined by Kentucky law. They must be judged using Kentucky standards, not an Illinois import. The Sixth Circuit has recently settled this conflict-of-laws point. See Harris Corp. v. Comair, Inc., et al., 712 F.2d 1069 (6th Cir.1983). Analytically speaking the Illinois and Kentucky statutes are indistinguishable. Our pivotal point is whether a secured creditor may qualify as a good faith purchaser with rights superior to a reclaimant. Both statutes contain this crucial category; the absence of presence of the lien creditor phraseology, of concern to sellers’ counsel, is of no moment. . KRS 355.1-201(33)(32). . KRS 355.1-201(44). . For cases in which a secured creditor was held to be a “purchaser for value,” see In re Summit Creek Plywood Co., Inc., 27 B.R. 209 (D.Or.1982); In the matter of McLouth Steel Corp., 22 B.R. 722 (E.D.Mich.1982); In re Western Farmers Ass’n., 6 B.R. 432 (W.D.Wash.1980); Los Angeles Paper Bag Co. v. James Talcott, Inc., 604 F.2d 38 (9th Cir.1979); Kennett-Murray Co. v. Pawnee National Bank, 26 UCCRS 686 (Ct.App.Ok.1979); In re Bowman, 25 UCCRS 738 (N.D.Ga.1978); In the Matter of Samuels & Co., 526 F.2d 1238 (5th Cir.), cert. denied, Stowers v. Mahon, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976); in re Daley, Inc., 17 UCCRS 433 (D.Mass.1975); First-Citizens Bank & Trust Co. v. Academic Archives, Inc., 8 UCCRS 1197 (Ct.App.N.C.1971); In re Haywood Woolen Co., 3 UCCRS 1107 (D.Mass.1967). . KRS 355.1-201(19). . In re Samuels, supra at pp. 1243-44; In re Bowman, supra at p. 743. . The First National Bank of Henderson is the agent bank. . Boarman, Gilíes, Payne and Gregory Memorandum in Response to Motion of Harris for Partial Summary Judgment, p. 23. . See note 20 supra. . KRS 355.9-312. . See note 19" }, { "docid": "142454", "title": "", "text": "“In sum, the substantial weight of authority holds that section 546(c) represents an exclusive remedy, and unless a seller meets the ten-day notice requirement, it has no other common law or statutory right of action.” In re HRT Industries, Inc., 29 B.R. 861, 864 (Bankr.S.D.N.Y.1983). Allstate’s claim to the proceeds of the sale of the equipment is subordinate to the rights of GECC as the holder of a security interest in the accounts receivable. The Uniform Commercial Code provides that the rights of the secured party to an account receivable are superior to those of a seller who does not retain a purchase money security interest. See UCC §§ 9-107, 9-301 and 9-306. See also In re Samuels & Co., Inc. (Stowers, et a. v. Mahon, et al.), 526 F.2d 1238 (5th Cir.1976). Even if these general principles were not sufficient, the Second Circuit’s decisions known as (Flagstaff I) and (Flagstaff II), cited supra, would dictate this outcome. CONCLUSION Thus, this court concludes that Allstate’s demand for reclamation fails due to the finding of fact that, although proper and timely demand was made and insolvency existed, the goods sought to be reclaimed were not in Flagstaff’s possession at the time of demand. Allstate’s allegation of fraud also fails. This court is of the opinion that Code § 546(c) is the exclusive remedy for reclaiming creditors. In any event, the rights of GECC as a secured party are superior to Allstate’s by virtue of the Uniform Commercial Code and the terms of the July 29 financing order. Since Allstate’s first two allegations fail, so must its third which sought reimbursement for attorneys’ fees. Accordingly, Allstate’s complaint is dismissed as to all parties. It is so ordered. . By order signed July 21, 1981, the following debtors were consolidated for procedural purposes: —Flagstaff Foodservice Corporation, —Flagstaff Foodservice Co. of New England, Inc., —Flagstaff Foodservice Co. of Connecticut, Inc., —Flagstaff Foods Corp., —Flagstaff International, Inc., —Marlboro Freezers, Inc., and —A. Peltz & Sons, Inc. . In October, 1983, GECC filed a motion specifying legal and factual objections to a number of the allowed" }, { "docid": "14319467", "title": "", "text": "Court decision in General Electric Credit Corp. v. Tidwell Industries, Inc., 115 Ariz. 362, 565 P.2d 868 (1977) (en banc). In that decision, the court held that an inventory and accounts receivable financer had the status of a protected “good faith purchaser” within the meaning of A.R.S. § 44r-2348 [U.C.C. § 2-403], and the secured lender’s interest in goods delivered to the buyer was superior to the interest of the unpaid cash seller of the goods. Id. at 365, 565 P.2d at 871. See, In re Samuels, 526 F.2d 1238 (5th Cir. 1976) (en banc) (held, interest of unpaid cash seller subordinate to interest of holder of perfected security interest in those same goods and proceeds received from the sale of those goods). Paper Bag argues that Talcott’s security interest never attached to the paper goods which were delivered to Fry’s because the goods never became inventory in the physical possession of Ace. We do not find this to be a material distinction. In substance, if not in form, the transaction at issue here is just the same as if the paper goods had been warehoused temporarily by Ace and then delivered to Fry’s. Delivery of goods to a third party pursuant to a buyer’s instructions is sufficient delivery to pass whatever rights and title the buyer might have had in the goods to the third party, just as if the delivery had been made by the buyer himself. Dairyman’s Cooperative Creamery Association v. Leipold, 34 Cal.App.3d 184, 188, 109 Cal.Rptr. 753, 755 (1973); Mason v. Rolando Lumber Co., 111 Cal.App.2d 79, 82, 243 P.2d 814, 815 (1952). Cf. State ex rel. Frohmiller v. Hendrix, 56 Ariz. 342, 346, 107 P.2d 1078, 1080 (1940) (held, delivery to buyer’s carrier pursuant to buyer’s instructions sufficient to pass title). Upon delivery of the goods to Fry’s, Ace had a right to receive payment for the paper goods, and, at that moment, Talcott’s perfected security interest in Ace’s new account receivable attached. AFFIRMED. . By separate suit, appellant obtained a judgment on November 29, 1976, against Ace for the full purchase price of" }, { "docid": "1086302", "title": "", "text": "right of reclamation. Absent some showing of bad faith, however, there is not much room to debate that a lienholder with a preexisting, perfected floating lien on inventory is a good faith purchaser with rights superior to those of a reclaiming seller. See, e.g., Stowers v. Mahon (In re Samuels & Co.), 526 F.2d 1238, 1242-1243 (5th Cir.), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976); Lavonia Mfg. Co. v. Emery Corp., 52 B.R. 944, 946 (E.D.Pa.1985); In re Diversified Food Serv. Distribs., 130 B.R. 427, 429 (Bankr.S.D.N.Y.1991). See, also, 4 Collier on Bankruptcy, ¶ 546.04 at 546-20—546-21. Klondike attempts to avoid the limitation of Section 672.702(3) of the Florida Statutes arguing that a change in statutory language which predates this case removes Barclays from the ambit of Section 672.-702(3). Section 672.702(3) of the Florida Statutes formerly provided the reclaiming seller’s right of reclamation was subject not only to the rights of a buyer in ordinary course or other good faith purchaser but also to the rights of a lien creditor. Since “or lien creditor” has now been removed from Section 672.702(3) of the Florida Statutes, Klondike contends its right of reclamation is not subject to Barclays’ rights. Klondike’s contention is without merit. Despite the removal of “or lien creditor” from Section 672.702(3) of the Florida Statutes, Klondike’s right of reclamation remains subject to Barclays’ rights because Barclays, as stated above, qualifies as a good faith purchaser. Section 672.702(3) of the Florida Statutes, however, does not extinguish Klondike’s right of reclamation but merely makes that right “subject to” Barclays’ perfected preexisting lien. Neither party has cited, nor has this Court found, any Florida cases interpreting Section 672.-702(3). There are, however, non-Florida cases interpreting the precise section of the Uniform Commercial Code (§ 2-702(3)) now before the Court. “ ‘[Sjubject to’ ... means the right is subordinate or inferior to the security interest ...” Pester Ref. Co. v. Ethyl Corp. (In re Pester Ref. Co.), 964 F.2d 842, 846 (8th Cir.1992). Section 672.702(3) of the Florida Statutes has the effect of placing Klondike’s rights behind, or subject" }, { "docid": "15571243", "title": "", "text": "the debtor, in the ordinary course of business, to reclaim such goods if the debtor has received such goods while insolvent, but— (1) such a seller may not reclaim any such goods unless such seller demands in writing reclamation of such goods before ten days after receipt of such goods by the debtor; and (2) the court may deny reclamation to a seller with such right of reclamation that has made such a demand only if the court— (A) grants the claim of such a seller priority as a claim of a kind specified in section 503(b) of this title; or (B) secures such claim by a lien. 11 U.S.C. § 546(c). In this' case, the five tobacco companies delivered reclamation notices to the debtor pursuant to the Uniform Commercial Code, 13 Pa.Cons.Stat.Ann. § 2702(b), which states in pertinent part that “[w]here seller discovers that the buyer has received goods on credit while insolvent he may reclaim the goods upon demand made within ten days after the receipt.” However, section 2702(c) makes the seller’s reclamation “subject to the rights of a buyer in ordinary course or other good faith purchaser under this division (section 24.03).” Id. § 2702(e) (1984) (emphasis added). In this case, the parties agree that the debtor received the goods while insolvent and that the tobacco companies made demand to reclaim within ten days after receipt of the goods. Thus, the only issue remaining is whether MNC is a “good faith purchaser” for purposes of section 2702(c). Clearly, a holder of a perfected security interest in after-acquired inventory is a “good faith purchaser” under 13 Pa.Cons. Stat.Ann. § 2403. See Lavonia Mfg. Co. v. Emery Corp., 52 B.R. 944, 946-47 (E.D.Pa. 1985) (citing Toyota Indus. Trucks U.S.A., Inc. v. Citizens Nat’l Bank of Evans City, 611 F.2d 465 (3d Cir.1979)). The Bankruptcy Judge concluded as a matter of law, however, that MNC’s conduct as discussed in Part V of this opinion was such that MNC was not entitled to be considered a “good faith purchaser” for purposes of reclamation. In reaching his conclusion, the judge reasoned that" }, { "docid": "14319466", "title": "", "text": "recorded. At the time of Talcott’s motion for summary judgment in this action, Ace owed Talcott $67,837.35. In June and July of 1976, plaintiff-in-in-terpleader, Fry’s Food Stores of Arizona, Inc. (“Fry’s”), made a purchase order for paper goods from Ace. Ace, in turn, ordered the goods from Paper Bag. Paper Bag, pursuant to instructions received from Ace, shipped the goods directly to Fry’s. Ace’s order for the paper goods was accompanied by a check drawn in the amount of $20,343.47 as full payment. That check was subsequently dishonored upon presentment. Paper Bag has yet to receive payment for the paper goods it sent on orders from Ace. Having been informed by Paper Bag and Talcott of each party’s competing demands for payment, and not yet having paid Ace for the paper goods delivered directly to it at Ace’s direction, Fry’s filed this action in interpleader seeking a judicial determination as to who was entitled to payment. II. We hold that the District Court, in its April 25,1977, judgment, correctly anticipated the subsequent controlling Arizona Supreme Court decision in General Electric Credit Corp. v. Tidwell Industries, Inc., 115 Ariz. 362, 565 P.2d 868 (1977) (en banc). In that decision, the court held that an inventory and accounts receivable financer had the status of a protected “good faith purchaser” within the meaning of A.R.S. § 44r-2348 [U.C.C. § 2-403], and the secured lender’s interest in goods delivered to the buyer was superior to the interest of the unpaid cash seller of the goods. Id. at 365, 565 P.2d at 871. See, In re Samuels, 526 F.2d 1238 (5th Cir. 1976) (en banc) (held, interest of unpaid cash seller subordinate to interest of holder of perfected security interest in those same goods and proceeds received from the sale of those goods). Paper Bag argues that Talcott’s security interest never attached to the paper goods which were delivered to Fry’s because the goods never became inventory in the physical possession of Ace. We do not find this to be a material distinction. In substance, if not in form, the transaction at issue here is" }, { "docid": "14515726", "title": "", "text": "lien to which it is entitled under Code § 546(c). See, e.g., Video King, 100 B.R. at 1016. This Court finds, as it did in Roberts Hardware, that while the right of reclamation is subject to superior perfected claims of other creditors, this subordination does not automatically result in the extinguishment of the seller’s reclamation claim. See Roberts Hardware, 103 B.R. at 398. However, a reclaiming seller is also not automatically entitled to an administrative priority claim or substitute lien in the entire amount of its claim merely because the seller’s right of reclamation is subject to a superior perfected claim. See Leeds Bldg. Prods., 141 B.R. at 269; FCX, 62 B.R. at 322. Instead, the reclaiming seller retains a priority interest in any goods remaining and in any surplus proceeds remaining after the superior secured creditor’s interests have been satisfied or released. See Pester Refining Co. v. Ethyl Corp. (In re Pester Refining Co.), 964 F.2d 842, 846 (8th Cir.1992). If the seller’s right to reclaim is worthless because the superior secured creditor’s claim exceeds the value of the goods, the seller’s request to reclaim is not denied by the court but rather is of no value, and therefore the remedies of an administrative priority claim or lien under Code § 546(c)(2) are unavailable to the seller. See Child World, 145 B.R. at 8; see also Pester, 964 F.2d at 847 (“[T]he bankruptcy court does not ‘deny reclamation’ in recognizing that the reclamation right no longer has value; therefore, the alternative remedies of Code § 546(c)(2) do not come into play.”). For example, if the goods of the seller would be fully used to satisfy the lien of the superi- or lien creditor, the seller’s right of reclamation would be rendered valueless and there would be no basis upon which to award an administrative claim or lien. See Video King, 100 B.R. at 1016-17. However, if the superior lien creditor’s lien was avoidable for some reason, such as because of a defect in perfection, and the court decided to deny the seller’s reclamation demand, the seller then would be" }, { "docid": "11569701", "title": "", "text": "lieu of, not in addition to, any right to reclaim.” Collingwood Grain, lnc. v. Coast Trading Co., Inc. (In re Coast Trading Co., Inc), 744 F.2d 686, 692 (9th Cir.1984) (J.Kennedy). See also Griffin Retreading Co. v. Oliver Rubber Co. (In re Griffin Retreading Co.), 795 F.2d 676, 679 (8th Cir.1986); American Saw & Mfg. Co. v. Bosler Supply Group (In re Bosler Supply Group), 74 B.R. 250, 254 (N.D.Ill.1987); In re FCX, Inc., supra, 62 B.R. at 322-323. Code § 546(c) is the seller’s exclusive remedy against a debtor in bankruptcy. See Hitachi Denshi America, Ltd. v. Rozel Ind., Inc. (In re Rozel lnd., Inc.), 74 B.R. 643, 645 (Bankr.N.D.Ill.1987) (and cases cited therein); 4 COLLIER ON BANKRUPTCY, supra, ¶ 546.04 at 546.-20. LIC’s statutory rights as a seller of goods are grounded in the NYUCC. In order for Marine’s valid security interest, which was perfected upon attachment, see NYUCC, supra, at § 9-203, to prevail over LIC’s right of reclamation under the Code, Marine must be a good faith purchaser under NYUCC § 2-403. NYUCC at § 2-702(3). Since it is clear that Marine is a purchaser for value within the meaning of the Code, and the NYUCC, see Code §§ 101(37), (50); NYUCC, supra, at §§ 1-201(32), (33), (44)(b), its superior status turns on the issue of good faith. See id. at § 1-201(19); Shell Oil Co. v. Mills Oil Co., Inc., 717 F.2d 208, 211-212 (5th Cir.1983). LIC bears the burden of proving Marine’s lack of good faith. See In re Coast Trad ing Co., Inc., supra, 744 F.2d at 690; In re FCX, Inc., supra, 62 B.R. at 322. There is no evidence before the Court that Marine did not act in good faith in its dealing with the Debtor. Accordingly, the Court holds that Marine is a good faith purchaser under NYUCC § 2-702 and its floating lien on the Debtor’s now owned or after-acquired inventory is superior to LIC’s right of reclamation under code § 546(c). See In re FCX, Inc., supra, 62 B.R. at 318, 319 (and cases cited therein). See also" }, { "docid": "14515722", "title": "", "text": "to establish this fact, along with every other element of Code § 546(c), by a preponderance of the evidence. See Video King, 100 B.R. at 1015; see also Monfort, Inc. v. Kunkel (In re Morken), 182 B.R. 1007, 1021 (Bankr.D.Minn.1995) (stating that presumption of insolvency is for preference purposes only under Code § 547(f)). Imperial also bears the burden of demonstrating that Debtor had possession of the Goods at the time the Notice was received. See Rawson Food Serv. 846 F.2d at 1347; In re New York Wholesale Distribs. Corp., 58 B.R. 497, 500 (Bankr.S.D.N.Y.1986); Allstate Fabricators, Inc. v. Flagstaff Foodservice Corp. (In re Flagstaff Foodservice Corp.), 56 B.R. 899, 908 n. 7 (Bankr.S.D.N.Y.1986). Returning to the first requirement of Code § 546(c) of a statutory or common-law right to reclaim, a seller in New York has a statutory right of reclamation where the buyer has received goods on credit while insolvent and where the seller has demanded return of the goods within the statutory time limit after receipt by the buyer. See NYUCC § 2-702; Sandoz Pharmaceuticals Corp. v. Blinn Wholesale Drug Co., Inc. (In re Blinn Wholesale Drug Co., Inc.), 164 B.R. 440, 443 (Bankr.E.D.N.Y.1994). The right to reclaim is limited by NYUCC § 2-702(3), however, which makes the seller’s right subject to the rights of a buyer in the ordinary course of business or other good faith purchaser. See Blinn, 164 B.R. at 443; Child World, 145 B.R. at 7. It is well-settled law that absent a showing of bad faith, a holder of a prior perfected, floating lien on inventory will be treated as a good faith purchaser with rights superior to those of a reclaiming seller. See Stowers v. Mahon (In re Samuels & Co.), 526 F.2d 1238, 1242-43 (5th Cir.1976); Isaly Klondike Co. v. Sunstate Dairy & Food Prods. Co. (In re Sunstate Dairy & Food Prods. Co.), 145 B.R. 341, 344 (Bankr.M.D.Fla.1992); Child World, 145 B.R. at 7; In re Diversified Food Serv. Distribs., 130 B.R. 427, 429 (Bankr.S.D.N.Y.1991). In the case sub judice, Debtor asserts that C & S Wholesale Grocers, Inc." }, { "docid": "6508377", "title": "", "text": "if it is to be required to return them. For the same reason, if the goods are not identifiable, the debtor could not identify or extract the goods to return them to the reclaiming seller. The issue concerning control of the goods or the identifiable nature of the goods would be relevant whether or not the reclaiming seller is seeking the goods in a bankruptcy context. Thus, it appears that these elements are requirements under the “independent right of reclamation under nonbankruptcy law.” Video King, 100 B.R. at 1014. Section 546(c) also affords the bankruptcy court broad discretion to substitute an administrative claim or lien in place of the right to reclaim. Pester, 964 F.2d at 845. This discretion gives the court needed flexibility and permits it to recognize the reclaiming creditor’s rights while allowing the debtor the opportunity to retain the goods in order to facilitate the reorganization effort. Id. Uniform Commercial Code (“U.C.C.”) § 2-702, as enacted in various jurisdictions, ordinarily forms the statutory right upon which sellers base their reclamation demand. Thus, as previously noted, the reclaiming seller must establish the requirements of the relevant U.C.C. section and remains subject to its limitations. Pursuant to U.C.C. § 2-702(3), the seller’s right to reclamation is “subject to” the rights of a good faith purchaser from the buyer. Pester, 964 F.2d at 844; In re Leeds Building Products, Inc., 141 B.R. 265, 268 (Bankr.N.D.Ga.1992); Video King, 100 B.R. at 1016; Sandoz Pharmaceuticals Corp. v. Blinn Wholesale Drug Co., Inc. (In re Blinn Wholesale Drug Co., Inc.), 164 B.R. 440, 443 (Bankr.E.D.N.Y.1994); Victory Markets, 212 B.R. at 742. That the right of a reclaiming creditor is subordinate to that of a good faith purchaser does not automatically extinguish the reclamation right. Pester, 964 F.2d at 846. Rather, the reclaiming creditor is “relegated to some less commanding station.” Leeds, 141 B.R. at 268. Most courts have treated “a holder of a prior perfected, floating lien on inventory ... as a good faith purchaser with rights superior to those of a reclaiming seller.” See Victory Markets, 212 B.R. at 742 (citing, Stowers" }, { "docid": "1149655", "title": "", "text": "546(c) states that, “the right [to reclaim] is subject to any superior rights of other creditors”. This rather general statement has been specifically applied in several cases factually similar to the one at issue. In Stowers v. Mahon, 526 F.2d 1238 (5th Cir. 1976); cert. den. 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976), the court considered reclamation claims by unpaid cash sellers of cattle in. bankruptcy proceedings. In a lengthy and complex Circuit Court panel dissent, adopted by the Fifth Circuit, the court concluded that the claims of these sellers were subordinate to those of the debtor’s secured lender (who had an after-acquired property clause). The court looked to Uniform Commercial Code Sections 2-403 and 2-507 as well as 2-702 to reach its decision that: “... under this provision [§ 2-403] the rights of an aggrieved cash seller are subordinated to those of the buyer’s good-faith purchasers, including Article Nine lenders ...” 526 F.2d at 1244. The same decision was reached in a Ninth Circuit opinion citing Stowers, Los Angeles Paper Bag Co. v. James Talcott, Inc., 604 F.2d 38 (9th Cir. 1979). The same conclusion has also been reached in cases involving credit sellers. In In re Bowman, 25 UCC Rept.Srv. 738 (U.S.D.C., N.D.Ga.1978), the court again held that the debtor, even though a defaulting buyer, could pass title to a good faith purchaser, UCC § 403. Moreover, under UCC § 1-201(32) a secured creditor is a good faith purchaser and should therefore prevail over the reclaimants. See also, Kennett-Murray & Co. v. Pawnee National Bank, 598 P.2d 274 (Okla.1979). I therefore find and conclude that these cases are in point and controlling. Counsel for defendant, Shaffer-Haggart, Inc., have cited In re American Food Purveyors, Inc., 17 UCC Rept.Srv. 436 (U.S.D.C., N.D.Ga.1974) as a case holding for the reclaimants. However, in that opinion the court felt that it had equitable reasons for concluding that the secured lender was not a good faith purchaser. Moreover, American Food is the only opinion cited for this proposition and therefore I conclude that it is contrary to the great weight" }, { "docid": "16767582", "title": "", "text": "disguised statutory lien or preference. Although the Bankruptcy Code specifically authorizes an unpaid seller to reclaim merchandise under express limitations delineated in 11 U.S.C. § 546(c), that right may not be asserted to defeat the interests of previously perfected inventory lien creditors. The right of reclamation from a breaching buyer is subordinate to those of previously perfected lien creditors, who are regarded in the same fashion as good faith purchasers whose rights are also superior to those of reclaiming sellers. Collingwood Grain, Inc. v. Coast Trading Company (In re Coast Trading Co., Inc.), 744 F.2d 686 (9th Cir.1984); Stowers v. Mahon (In re Samuels & Co., Inc.), 526 F.2d 1238 (5th Cir.1976) (en banc), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976); In re Roberts Hardware Co., 103 B.R. 396 (Bankr.N.D.N.Y.1988). Indeed, the reclaiming sellers’ demand for the proceeds of the auction sale, to the extent of their unpaid bills, is not consistent with the reclamation right authorized under 11 U.S.C. § 546(c) and U.C.C. § 2-702. As stated by Judge Anthony M. Kennedy (now Mr. Justice Kennedy): Section 2-702 speaks only of reclaiming goods not of reclaiming proceeds. Section 2-702, therefore, does not in and of itself create a right to reclaim the proceeds of the resale of the goods. In re Coast Trading Co., Inc., 744 F.2d at 691. Because the reclaiming sellers have satisfied the prerequisites of 11 U.S.C. § 546(c), but are prevented from enforcing their reclamation rights against CIT’s superior status, they are entitled to an administrative expense priority claim in accordance with 11 U.S.C. § 546(c)(2)(A) which: (A) grants the claim of such a seller priority as a claim specified in Section 503 of this title 11 U.S.C. § 546(c)(2)(A). See In re Roberts Hardware Co., 103 B.R. at 399; In re AIC Photo, Inc., 57 B.R. 56, 60 (Bankr.E.D.N.Y.1985). An administrative expense claim under 11 U.S.C. § 503(b) is accorded a first priority status pursuant to 11 U.S.C. § 507(a)(1). CONCLUSIONS OF LAW 1. This court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C." }, { "docid": "6508395", "title": "", "text": "to the rights of a good faith purchaser, the reclamation right is not automatically extinguished. Relying on this principle, Galey argues that, pursuant to § 546, it is entitled to either an administrative claim or lien in lieu of its right to reclamation. Galey maintains that if it is denied this relief, its claim effectively is extinguished by the presence of a good faith purchaser. Further. Galey contends that because there will be surplus collateral once CIT has been paid in full, that collateral should be used to pay Galey’s reclamation claim and it should get its administrative claim or lien on that surplus. The Trustee counters that it is not arguing that a reclaiming seller’s claim is extinguished. Rather, the Trustee argues that when the goods subject to a reclamation demand are liquidated and the proceeds are used to pay the secured creditor’s claim, the reclaiming seller’s subordinated right is rendered valueless. The Trustee maintains that once the secured creditor is paid in full, the reclaiming seller is only entitled to reclamation when the surplus collateral remaining consists of the very goods sold by the reclaiming seller or the traceable proceeds from those goods. Courts differ on the treatment to be afforded reclaiming sellers subject to the superior rights of good faith purchasers. Some courts have awarded a reclaiming seller, who otherwise meets the criteria to qualify as a reclaiming seller but is subject to a superior claim, an administrative claim or replacement lien for the full amount of the goods sought to be reclaimed. Sunstate Dairy, 145 B.R. at 345-46; In re Diversified Food Service Distributors, Inc., 130 B.R. 427, 430 (Bankr.S.D.N.Y.1991). However, the majority view appears to be some method of assuring that the reclaiming seller only receive what it would have received outside of the bankruptcy context after the superior claim was satisfied. Pester, 964 F.2d at 847; Leeds, 141 B.R. at 269; Blinn, 164 B.R. at 448; Victory Markets, 212 B.R. at 744. Thus, it is only when the reclaiming seller’s goods or traceable proceeds from those goods are in excess of the value of" }, { "docid": "14515723", "title": "", "text": "2-702; Sandoz Pharmaceuticals Corp. v. Blinn Wholesale Drug Co., Inc. (In re Blinn Wholesale Drug Co., Inc.), 164 B.R. 440, 443 (Bankr.E.D.N.Y.1994). The right to reclaim is limited by NYUCC § 2-702(3), however, which makes the seller’s right subject to the rights of a buyer in the ordinary course of business or other good faith purchaser. See Blinn, 164 B.R. at 443; Child World, 145 B.R. at 7. It is well-settled law that absent a showing of bad faith, a holder of a prior perfected, floating lien on inventory will be treated as a good faith purchaser with rights superior to those of a reclaiming seller. See Stowers v. Mahon (In re Samuels & Co.), 526 F.2d 1238, 1242-43 (5th Cir.1976); Isaly Klondike Co. v. Sunstate Dairy & Food Prods. Co. (In re Sunstate Dairy & Food Prods. Co.), 145 B.R. 341, 344 (Bankr.M.D.Fla.1992); Child World, 145 B.R. at 7; In re Diversified Food Serv. Distribs., 130 B.R. 427, 429 (Bankr.S.D.N.Y.1991). In the case sub judice, Debtor asserts that C & S Wholesale Grocers, Inc. and State Bank of New South Wales, Ltd. had prior perfected floating liens on the Debtor’s inventory on the date that Imperial asserted its right of reclamation. Imperial has not disputed this assertion, nor has it argued that either entity is not a good faith purchaser. Therefore, both C & S 'Wholesalers, Inc. and State Bank of New South Wales, Ltd. are deemed to have been good faith purchasers with rights superior to those of Imperial as a reclaiming seller as of September 20, 1995. See, e.g., Sunstate Dairy & Food Prods., 145 B.R. at 344. Since there are prior perfected security interests in the Goods that Imperial seeks to reclaim, Imperial’s claim is necessarily subordinated, but is not automatically extinguished. Rather, Imperial’s claim is relegated to “some less commanding station.” In re Wathen’s Elevators, Inc., 32 B.R. 912, 923 (Bankr.W.D.Ky.1983); see Leeds Bldg. Prods., 141 B.R. at 268; Pillsbury Co. v. FCX, Inc. (In re FCX, Inc.), 62 B.R. 315, 322 (Bankr.E.D.N.C.1986). What this “station” is, however, has been the subject of divergent judicial" }, { "docid": "11569702", "title": "", "text": "2-403. NYUCC at § 2-702(3). Since it is clear that Marine is a purchaser for value within the meaning of the Code, and the NYUCC, see Code §§ 101(37), (50); NYUCC, supra, at §§ 1-201(32), (33), (44)(b), its superior status turns on the issue of good faith. See id. at § 1-201(19); Shell Oil Co. v. Mills Oil Co., Inc., 717 F.2d 208, 211-212 (5th Cir.1983). LIC bears the burden of proving Marine’s lack of good faith. See In re Coast Trad ing Co., Inc., supra, 744 F.2d at 690; In re FCX, Inc., supra, 62 B.R. at 322. There is no evidence before the Court that Marine did not act in good faith in its dealing with the Debtor. Accordingly, the Court holds that Marine is a good faith purchaser under NYUCC § 2-702 and its floating lien on the Debtor’s now owned or after-acquired inventory is superior to LIC’s right of reclamation under code § 546(c). See In re FCX, Inc., supra, 62 B.R. at 318, 319 (and cases cited therein). See also Stowers v. Mahon (In re Samuels & Co., Inc.), 526 F.2d 1238 (5th Cir.), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976); Lavonia Mfg. Co. v. Emery Corp. (In re Lavonia Mfg. Co.), 52 B.R. 944, 946 (E.D.Pa.1985); Bojalad & Co. v. Holiday Meat Packing Co. (In re Holiday Meat Packing Co.), 30 B.R. 737, 740-741 (Bankr.W.D.Pa.1983); Petroleum Specialties, Inc. v. McLouth Steel Corp. (In re McLouth Steel Corp.), 22 B.R. 722, 724 (Bankr.E.D.Mich.1982); Western Farmers Ass’n. v. Giba Geigy (In re Western Farmers Ass’n), 6 B.R. 432, 433-434 (Bankr.W.D.Wash.1980); 4 COLLIER ON BANKRUPTCY, supra, ¶ 546.04 at 564.18. None of the parties take issue with LIC’s compliance with Code § 546(c) or that the goods sought to be reclaimed were in the Debtor’s possession at the time of the demand. Hence, the Court finds that the disputed goods were sold in LIC’s ordinary course of business to the Debtor who was insolvent within the meaning of Code § 101(31)(A) when it received, or took physical possession of them, see NYUCC," } ]

[ { "docid": "16959505", "title": "", "text": "at which plaintiff acknowledged she had received all the requested documents and no substantive controversy as to the documents remained. Plaintiff was concerned, however, that dismissing the case as moot might deprive her of the right to seek attorney’s fees under the FOIA. See 5 U.S.C. § 552(a)(4)(E). The district court assured plaintiff that she could still pursue her fee application even if the merits of the case were dismissed as moot and specifically reserved the fee issue in its final order on the merits. To be entitled to fees under § 552(a)(4)(E), plaintiff must establish that she substantially prevailed in the litigation and that a fee award is otherwise justified. See, e.g., Aviation Data Serv. v. FAA, 687 F.2d 1319, 1321 (10th Cir.1982) (discussing the criteria for awarding attorney’s fees under the FOIA). At the bottom of plaintiff’s appeal of the district court’s dismissal order is her fear that she will not be able to establish her entitlement to fees because “[t]he dismissal of the case as moot, prior to trial, may be interpreted as leaving the court to decide [plaintiffs] claim for attorneys’ fees without reference to the underlying cause of action,” Appellant’s Br. at 9. This fear is unfounded. Once the government produces all the documents a plaintiff requests, her claim for relief under the FOIA becomes moot. Carter v. Veterans Admin., 780 F.2d 1479, 1481 (9th Cir.1986); DeBold v. Stimson, 735 F.2d 1037, 1040 (7th Cir.1984); Webb v. Department of Health & Human Servs., 696 F.2d 101, 106 (D.C.Cir.1982). Plaintiff, however, argues that her claim for attorney’s fees was part of the merits of her FOIA action because the claim arose under the FOIA, itself. Therefore, plaintiff reasons, the action could not become moot so long as the attorney’s fee issue remained unresolved. The Supreme Court has rejected the principal tenet of plaintiffs argument: “[W]e think it indisputable that a claim for attorney’s fees is not part of the merits of the action to which the fees pertain.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988). The" } ]

[ { "docid": "15139823", "title": "", "text": "and plants, including hundreds of threatened, endangered, and sensitive species. Roadless areas in our national forests also help conserve some of the last unspoiled wilderness in our country. The unspoiled forest provides not only sheltering shade for the visitor and sustenance for its diverse wildlife but also pure water and fresh oxygen for humankind. . The opinions do not mention any allegation by the plaintiffs in those cases that wilderness characteristics had to be considered in NEPA documents. . Several district courts are in accord with this analysis. See Or. Natural Desert Ass’n v. Shuford, No. 06-242-AA, 2007 WL 1695162 (D.Or. June 8, 2007) (upholding the BLM’s NEPA wilderness analysis where the \"BLM evaluated ONDA’s proposed [wilderness areas] and identified one parcel ... as having wilderness characteristics’’); Chihuahuan Grasslands Alliance v. Norton, 507 F.Supp.2d 1216, 1235-38 (D.N.M.2007) (recognizing the BLM’s duty to \"address potential wilderness-quality lands through NEPA”); Or. Natural Desert Ass’n v. Rasmussen, 451 F.Supp.2d 1202, 1212-13 (D.Or.2006) (holding that the BLM has “a responsibility to provide accurate information regarding any changes to the wil derness characteristics\" in an area affected by its actions). . The BLM also suggests that it did not know there was a need for a new wilderness inventory because ONDA did not raise the issue during the initial scoping process for the Plan and EIS. But the question is not whether the BLM needed to conduct a full wilderness inventory under 43 U.S.C. § 1711 (although such an inventory may be appropriate). Such methodological questions are not at issue here. Instead, the question is whether the BLM was put on notice that it should address wilderness issues at all. It clearly was. ONDA submitted extensive comments concerning wilderness values in response to the draft EIS, on the assumption that the BLM could designate new WSAs, a power the BLM did not forego until later in the 2003 Utah settlement. ONDA also addressed the wilderness issue in its protest letter. All that is required of ''[plersons challenging an agency's compliance with NEPA” is that they “structure their participation so that it ... alerts the agency" }, { "docid": "21904996", "title": "", "text": "last surrendered all of the requested documents, the district judge on January 22, 1981, granted the government’s motion to dismiss or, in the alternative, for summary judgment. The trial judge also directed Perry’s counsel to submit a request for reasonable attorneys’ fees and costs. This appeal ensued. II. Appellant posits a variety of challenges to the government actions in this case, only two of which merit discussion here. We would simply note at this juncture that, however fitful or delayed the release of information under the FOIA may be, once all requested records are surrendered, federal courts have no further statutory function to perform. Although “[tjhere may very well be circumstances in which prolonged delay in making information available or unacceptably onerous opportunities for viewing disclosed information require judicial intervention,” Lybar-ger v. Cardwell, 577 F.2d 764, 767 (1st Cir. 1978), the case at bar does not mandate such court action. Under 5 U.S.C. § 552(a)(4)(B), a federal court is authorized only to “enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld .. . . ” Thus, “[ojnce the records are produced the substance of the controversy disappears and becomes moot since the disclosure which the suit seeks has already been made.” Crooker v. United States State Department, 628 F.2d 9, 10 (D.C.Cir. 1980). We are not authorized to make advisory findings of legal significance on the character of the agency conduct vis-a-vis any requester of information. In sum, if we are convinced that appellees have, however belatedly, released all nonexempt material, we have no further judicial'function to perform under the FOIA. We turn now to the two arguments proffered by appellant that warrant limited discussion. First, arguing that relevant, nonexempt documents remain undisclosed, appellant contends that the affidavits submitted by appellees were insufficient to establish that the government search had been thorough and that all records had been released. Second, appellant contends that we should remand the case to the district court for a trial on his claim for damages under the Privacy Act. A. The Adequacy of the Affidavits Since" }, { "docid": "6171227", "title": "", "text": "1336, 1373 (D.C.Cir.1985) (Wright, J., dissenting))). III. Scope of Review The APA requires a court to “review the whole record or those parts of it cited by a party” when reviewing an agency action. 5 U.S.C. § 706. The “whole record” consists of “everything that was before the agency pertaining to the merits of its decision.” Portland Audubon Soc’y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir.1993). The whole record is not just what the agency submitted as the administrative record but also includes “all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency’s position.” Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir.1989) (citation omitted) (internal quotation mark omitted). DISCUSSION Before considering ONDA’s NEPA and FLPMA claims, I first address ONDA’s motion for leave to file a surreply, BLM’s argument that ONDA lacks standing to challenge the six CX decisions, and BLM’s motion to strike extra-record evidence. I. Motion for Leave to File a Surreply In the memorandum in support of the motion for leave to file a surreply, ONDA contends that BLM presents new facts and raises new arguments in its reply brief and argues that ONDA should have an opportunity to respond to these new contentions. Specifically, ONDA argues that BLM makes new factual arguments about greater sage-grouse leks, raises reliability concerns regarding Dr. Miller’s GIS analysis, raises new arguments with regard to ONDA’s standing, and seeks to strike Dr. Miller’s second declaration. “When a party has raised new arguments or presented new evidence in a reply to an opposition, the court may permit the other party to counter the new arguments or evidence.” Jordan v. Terhune, No. CIV S-03-1820 LKK KJM P, 2009 WL 276764, at *3 (E.D.Cal. Feb. 5, 2009) (citing El Pollo Loco, Inc. v. Hashim, 316 F.3d 1032, 1040-41 (9th Cir.2003)); see also Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir.1996) (‘“[W]here new evidence is presented in a reply to a motion for summary judgment, the district court should not consider the new evidence without giving the [non]movant an" }, { "docid": "6171229", "title": "", "text": "opportunity to respond.’ ” (citation omitted)). Here, while I do not agree that all of the evidence and arguments ONDA identifies as “new” are, in fact, new, I will nevertheless grant ONDA’s motion for leave to file a surreply. After review of the proposed surreply, I find that it does not alter my conclusions. II. Standing BLM requests that the court grant summary judgment in its favor on ONDA’s claims relating to the East Cow Creek CX, the Three Rivers Southeast CX, the Rincon Flat CX, and the Chimney CX on the basis that ONDA lacks standing to challenge these decisions. BLM argues that, because “ONDA is challenging six discrete agency actions,” it must establish an injury-in-fact as to each agency decision. BLM’s Reply in Support of Cross Motion for Summary Judgment, # 54, at 8. Although BLM acknowledges that Dr. Miller’s declaration sufficiently asserts a geographic nexus to the areas impacted by the 2009 Andrews CX and the 2011 Andrews CX, BLM argues that ONDA has failed to present admissible evidence that Dr. Miller, or any other ONDA member, has used and enjoyed or has specific and definite future plans to use and enjoy the roads at issue in the four other CXs. In response, ONDA argues that it “has demonstrated a sufficiently concrete interest to establish an injury in fact” because “the complaint alleges that ONDA’s members and staff use and enjoy the public lands that are the subject of the challenged agency decisions” and Dr. Miller’s declaration establishes that he has visited, and will visit in the future, the areas impacted by the CXs. ONDA’s Surreply in Support of Motion for Summary Judgment, # 59-1, at 11. ONDA further contends that BLM’s suggestion that ONDA must establish that Dr. Miller, or another ONDA member, has used each road at issue in the six CXs is erroneous. Rather, ONDA argues that, because Dr. Miller has sufficiently alleged that the CXs will have wide-ranging effects that will interfere with his opportunity to “observe sage grouse and sage-grouse habitat,” ONDA has standing to challenge all six agency decisions. Id. at" }, { "docid": "476752", "title": "", "text": "the Court should find that Defendants “improperly delayed and withheld agency records.” Pl.’s Resp. to Second Mot. for Partial Summ. J. at 5. The Court refuses to find an improper withholding or delay on two grounds. First, this Circuit has established that a defending agency in a FOIA case is entitled to summary judgment if “the defending agency [can] prove that each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act’s inspection requirements.” Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 368 (D.C.Cir.1980) (internal citations and quotations omitted). Defendants in the present case have demonstrated that the twenty-three pages at issue were produced. Therefore, it follows from Weisberg that Defendants are entitled to summary judgment. Id. Second, this Court has held that “however fitful or delayed the release of information under the FOIA may be, once all requested records are surrendered, federal courts have no further statutory function to perform.” Perry v. Block, 684 F.2d 121, 125 (D.C.Cir.1982); see also Anderson v. U.S. Dep’t of Health & Human Servs., 3 F.3d 1383, 1384 (10th Cir.1993) (holding that “[o]nce the government produces all the documents a plaintiff requests, her claim for relief under the FOIA becomes moot”). Therefore, even if Defendants’ release of the USAF documents subjected Plaintiff to delay before producing the records, this Court cannot make a finding of improper delay or withholding of documents because the issue has become moot. Accordingly, the Court grants Defendants’ Second Motion for Partial Summary Judgment. IV. CONCLUSION For the aforementioned reasons, the Court shall GRANT in part and DENY in part [11] Defendants’ Motion for Partial Summary Judgment; GRANT in part and DENY in part [13] Plaintiffs Cross-Motion for Summary Judgment; and GRANT [17] Defendants’ Second Motion for Partial Summary Judgment. Defendants shall produce the following information to Plaintiff: 1) incentive payments to the contractor; 2) answers to NIH questions in the revised contract proposal; 3) the withheld NIH contract questions; and 4) redactions of the square footage of the APF, daily inventories of animals, floor plans and wiring diagrams," }, { "docid": "16522350", "title": "", "text": "has considered and released “[a]ll reasonably segregable nonexempt responsive records known to exist,” rendering moot any delay in response. Plaintiffs respond that USCIS’s recurring timing violations are by nature “inherently transitory” and thus qualify for an exception to the mootness doctrine. Plaintiffs point out that at the time of filing their opposition and cross-motion, Hajro had filed a second application for naturalization, in which a denial after hearing would require a FOIA request to obtain documents related to the hearing— likely raising these saihe issues again. Plaintiffs reason that the repetitive nature of these agency processes, as further demonstrated by Plaintiffs’ broader allegations of systemic FOIA violations, creates a reasonable expectation that the same violations will recur. Plaintiffs also argue that under FOIA itself, the district court has jurisdiction to review the denial of expedited processing because Defendants’ response to Hajro’s request is not yet “complete.” With respect to Plaintiffs’ second cause of action based upon the November 2007 denial of expedited processing of Hajro’s FOIA request, the court agrees with Defendants that Plaintiffs do not appear to challenge the adequacy of USCIS’s search for responsive documents or its reliance upon FOIA’s exemptions to withhold some documents, but disagrees that Defendants’ production was “complete.” As discussed at length infra Part D, the court finds that Defendants erred in concluding that all of the withheld documents are subject to a FOIA exemption. The nonexempt portions of the withheld documents render USCIS’s response incomplete and the expedited process request subject to judicial review. However, since Plaintiffs frame the denial of Hajro’s expedited request as being in breach of the Settlement Agreement, the court will address the merits of the denial in its discussion of the Settlement Agreement status and any violations flowing from its termination or alteration. See infra Part E. As to Plaintiffs’ other allegations based on timing, Defendants offer only a conclusory assertion that “[t]o the extent Plaintiff Hajro is challenging the timeliness of USCIS’s FOIA responses, those claims should be dismissed as barred by the statute or as moot.” Presumably this is similarly due to the fact that “however" }, { "docid": "6171238", "title": "", "text": "matter; or (4) when a plaintiff makes a showing of agency bad faith. Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943 (9th Cir.2006). Parties may not use post-decision information either to justify or attack an agency’s decision. Id. In this case, in conducting my analysis of ONDA’s claims below, I considered Dr. Miller’s declarations but did not find them to alter my conclusions. Accordingly, I deny as moot BLM’s motion to strike extra-record evidence. IV. NEPA Claim Under its NEPA claim, ONDA argues that BLM acted arbitrarily, capriciously, or abused its discretion when it failed to prepare an EIS for the six challenged actions. First, ONDA argues that the proposed road maintenance falls outside the scope of the routine-maintenance CX. That is, ONDA contends that the mechanical maintenance of “576 miles of routes splayed across more than 3 million acres of public land” is not the limited or insignifi cant action permitted under 43 C.F.R. § 46.210(f) and, thus, BLM was required under NEPA to prepare an EIS. ONDA’s Memo, in Support of Motion for Summary Judgment, # 33, at 16. Second, even if the road maintenance at issue is within the scope of the routine-maintenance CX, ONDA contends that BLM was still required to prepare an EIS because five exceptional circumstances apply. Third, ONDA argues that BLM improperly segmented “connected actions” and that the actions combined have a significant impact on the environment, thus requiring an EIS, Id. at 29 (internal quotation marks omitted). A. Scope of Categorical Exclusion ONDA first argues that “[t]he maintenance BLM authorizes is far more intense than the types of limited, administrative actions contemplated by the exclusion category at 43 C.F.R. § 46.210(f).” Id. at 16. ONDA contends that all six agency actions together affect 576 miles of public-land routes and that the proposals involve far more intensive work than the “spot maintenance” covered by the routine-maintenance CX. Id. Indeed, ONDA argues that some of the “roads” identified for maintenance are nonexistent. Id. at 17-18. Moreover, ONDA contends that the proposed maintenance will have “long-term effects lasting decades" }, { "docid": "6171265", "title": "", "text": "is granted. A final judgment should be prepared. . In addition to Article III standing, a plaintiff must meet the nonconstitutional or prudential standing requirements. Nuclear Info. & Res. Serv. v. Nuclear Regulatory Comm’n, 457 F.3d 941, 950 (9th Cir.2006). BLM does not argue that ONDA lacks prudential standing and, thus, I find it unnecessary to address this issue. . While BLM requests that the court strike Dr. Miller’s declarations and accompanying maps as extra-record evidence, BLM does not challenge the use of the declarations or maps for the purpose of determining whether ONDA has standing. See BLM’s Memo, in Support of Motion to Strike Extra-Record Evidence, # 41, at 2 n. 1. . Although ONDA lacks standing as to the East Cow Creek CX, I will proceed with my analysis of ONDA’s claims as if ONDA has standing to challenge all six CXs. . I note that BLM contends that, in finding that 43 C.F.R. § 46.215(b) did not apply with regard to each CX, it relied on two documents indicating that secondary roads do not impact the sage-grouse population. The first is a document titled \"A Report on National Greater Sage-Grouse Conservation Measures” that was published in December 2011, see AR 85-158, and the second is a final EIS authored by BLM for the North Steens 230-kv Transmission Line Project that was published in October 2011, see AR 246-1505. Both of these documents were published well after five of the six CXs were issued and, thus, BLM was clearly not relying on these documents when it determined that those five CXs would not impact migratory birds. Nevertheless, the October 2011 EIS authored by BLM cites to a 2007 study, which predates all of the CX decisions at issue here, to support its conclusion that secondary roads do not negatively impact the sage-grouse population." }, { "docid": "11898758", "title": "", "text": "considered in the EIS for grazing management, as well as the EIS’s alleged failure to consider the cumulative impacts of grazing. Third, ONDA contended that, as the BLM had “considered] no alternative that closes more than 0.8% of the public lands within the planning area” to ORV use, the Bureau had committed a “clear violation” of NEPA’s alternatives requirement. The BLM denied the protest in September 2002. It considered ONDA’s' comments in some detail: First, as it had done in response to ONDA’s comments on the draft EIS, the BLM construed ONDA’s concerns as requesting that it reassess the recommendations it made in its 1991 wilderness report, conducted under 43 U.S.C. § 1782. It again explained that the § 1782 wilderness review was a “one-time” responsibility. It dismissed ONDA’s NEPA concerns regarding wilderness issues summarily as “not ... clear.” The BLM answered ONDA’s concerns over the grazing alternatives analysis by stating that the alternatives it had considered would have different “effects [from each other] in both the short and long term.” And it responded to ONDA’s concerns over ORVs by stating that the limited designation would “provid[e] a comparable degree of protection” as the closed designation, and that the alternative analysis was therefore sufficient. The BLM then adopted the Plan and EIS in a record of decision (“ROD”), see 40 C.F.R. § 1505.2, and announced its availability in April 2003. See Notice of Availability of the Record of Decision for the Southeastern Oregon Resource Management Plan and Final Environmental Impact Statement, 68 Fed.Reg. 16,307 (Apr. 3, 2003). 2. ONDA’s Survey Because the BLM had not responded to its wilderness concerns, ONDA decided to undertake a survey of land with wilderness characteristics outside of the WSAs, docu menting changes that had occurred since November 1980, when the BLM completed the inventory supporting its 1991 preservation recommendations. See Or. Natural Desert Ass’n, Wilderness Inventory Recommendations: Vale District (“ONDA Survey”) (2004). In doing so, ONDA relied upon wilderness inventory procedures described in the BLM’s guidance documents. ONDA Survey at i-ii; see also Bureau of Land Mgmt., U.S. Dep’t of the Interior, BLM Wilderness" }, { "docid": "6171237", "title": "", "text": "I find that ONDA has failed to show an injury-in-fact as to the East Cow Creek CX and, consequently, ONDA lacks standing to challenge this CX, I therefore grant BLM’s cross motion for summary judgment to the extent it requests judgment in BLM’s favor on ONDA’s claims related to the East Cow Creek CX. III. Motion to Strike In the motion to strike extra-record evidence, BLM moves to strike Dr. Miller’s first and second declarations and accompanying maps on the basis that they are improper extra-record evidence not permitted under the APA, Generally, judicial review of agency action is limited to review of the administrative record. Animal Def. Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988). The Ninth Circuit, however, has recognized four exceptions to this rule, allowing extra-record materials: (1) if necessary to determine whether the agency has considered all relevant factors and has explained its decision; (2) when the agency has relied on documents not in the record; (3) when supplementing the record is necessary to explain technical terms or complex subject matter; or (4) when a plaintiff makes a showing of agency bad faith. Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943 (9th Cir.2006). Parties may not use post-decision information either to justify or attack an agency’s decision. Id. In this case, in conducting my analysis of ONDA’s claims below, I considered Dr. Miller’s declarations but did not find them to alter my conclusions. Accordingly, I deny as moot BLM’s motion to strike extra-record evidence. IV. NEPA Claim Under its NEPA claim, ONDA argues that BLM acted arbitrarily, capriciously, or abused its discretion when it failed to prepare an EIS for the six challenged actions. First, ONDA argues that the proposed road maintenance falls outside the scope of the routine-maintenance CX. That is, ONDA contends that the mechanical maintenance of “576 miles of routes splayed across more than 3 million acres of public land” is not the limited or insignifi cant action permitted under 43 C.F.R. § 46.210(f) and, thus, BLM was required under NEPA to prepare an EIS. ONDA’s" }, { "docid": "16522351", "title": "", "text": "not appear to challenge the adequacy of USCIS’s search for responsive documents or its reliance upon FOIA’s exemptions to withhold some documents, but disagrees that Defendants’ production was “complete.” As discussed at length infra Part D, the court finds that Defendants erred in concluding that all of the withheld documents are subject to a FOIA exemption. The nonexempt portions of the withheld documents render USCIS’s response incomplete and the expedited process request subject to judicial review. However, since Plaintiffs frame the denial of Hajro’s expedited request as being in breach of the Settlement Agreement, the court will address the merits of the denial in its discussion of the Settlement Agreement status and any violations flowing from its termination or alteration. See infra Part E. As to Plaintiffs’ other allegations based on timing, Defendants offer only a conclusory assertion that “[t]o the extent Plaintiff Hajro is challenging the timeliness of USCIS’s FOIA responses, those claims should be dismissed as barred by the statute or as moot.” Presumably this is similarly due to the fact that “however fitful or delayed the release of information under the FOIA may be, once all requested records are surrendered, federal courts have no further statutory function to perform.” But as noted, the court finds that certain nonexempt records have yet to be released to Hajro. Additionally, Plaintiffs’ claims are not moot insofar as they raise the specter of a pattern or practice that remains unaddressed, even as the particular requests originally forming the basis for the challenge are no longer active. The government has not countered Plaintiffs’ evidence that USCIS failed to comply with the requirements of Sections 552(a)(6)(A) and (B) in Hajro and Mayock’s cases, or Plaintiffs’ contention that such failure to comply is symptomatic of USCIS’s policy for responding to FOIA requests for alien registration files. The likelihood that USCIS will repeat the same violations against Plaintiffs and in the broader application of its responses to such requests militates against a finding of mootness. D. Withholding of Non-Exempt Documents Under FOIA and the APA Plaintiffs’ remaining constitutional and FOIA-based claims stem from the allegedly" }, { "docid": "17436722", "title": "", "text": "(1998) (citation and quotation marks omitted); see also Carter, 780 F.2d at 1481; Cornucopia Inst., 560 F.3d at 675-76. To moot a FOIA claim, however, the agency’s production must give the plaintiff everything to which he is entitled. Otherwise, there remains some “effective relief’ that can be provided the plaintiff, and the case is not moot. Siskiyou Reg’l Educ. Project, 565 F.3d at 559 (citation omitted). A FOIA claim is not moot, for example, if the agency produces what it maintains is all the responsive documents, but the plaintiff challenges “whether the [agency’s] search for records was adequate.” Nw. Univ. v. Dep’t of Agric., 403 F.Supp.2d 83, 85-86 (D.D.C.2005); see also 5 U.S.C. § 552(a)(3)(C)-(D) (requiring agencies to conduct a search reasonably calculated to uncover all records responsive to the request). In that situation, there is still a live controversy regarding whether the agency is withholding records. See, e.g., Papa, 281 F.3d at 1013. The district court in this case held that when the VA offered the 157 emails to Yonemoto in his capacity as its employee, the agency was no longer withholding those records within the meaning of 5 U.S.C. § 552(a)(4)(B), and the claim was therefore moot. See Yonemoto III, 2009 WL 5033597, at *4. But the district court’s premise regarding the reach of § 552(a)(4)(B) was wrong, making its mootness conclusion wrong as well. Under the FOIA, Yonemoto was entitled to the records unencumbered by restrictions on further use or dissemination. Access as a VA employee entails restrictions on dissemination, and so does not provide the access granted by the FOIA. As to the first point, as the Department of Justice recognizes, “it is well settled that it is not appropriate for a court to order disclosure of information to a FOIA requester with a special restriction, either explicit or implicit, that the requester not further disseminate the information received.” Department of Justice Chdde to the Freedom of Information Act 721 (footnote omitted). This principle derives from the understanding that “FOIA provides every member of the public with equal access to public documents and, as such, information" }, { "docid": "15139763", "title": "", "text": "the draft EIS, the BLM construed ONDA’s concerns as requesting that it reassess the recommendations it made in its 1991 wilderness report, conducted under 43 U.S.C. § 1782. It again explained that the § 1782 wilderness review was a “one-time” responsibility. It dismissed ONDA’s NEPA concerns regarding wilderness issues summarily as “not ... clear.” The BLM answered ONDA’s concerns over the grazing alternatives analysis by stating that the alternatives it had considered would have different “effects [from each other] in both the short and long term.” And it responded to ONDA’s concerns over ORVs by stating that the limited designation would “provid[e] a comparable degree of protection” as the closed designation, and that the alternative analysis was therefore sufficient. The BLM then adopted the Plan and EIS in a record of decision (“ROD”), see 40 C.F.R. § 1505.2, and announced its availability in April 2003. See Notice of Availability of the Record of Decision for the Southeastern Oregon Resource Management Plan and Final Environmental Impact Statement, 68 Fed.Reg. 16,307 (Apr. 3, 2003). 2. ONDA’s Survey Because the BLM had not responded to its wilderness concerns, ONDA decided to undertake a survey of land with wilderness characteristics outside of the WSAs, documenting changes that had occurred since November 1980, when the BLM completed the inventory supporting its 1991 preserva tion recommendations. See Or. Natural Desert Ass’n, Wilderness Inventory Recommendations: Yale District (“ONDA Survey”) (2004). In doing so, ONDA relied upon wilderness inventory procedures described in the BLM’s guidance documents. ONDA Survey at i-ii; see also Bureau of Land Mgmt., U.S. Dep’t of the Interior, BLM Wilderness Inventory and Study Procedures, H-6310-1 (“2001 Handbook”) 5-16 (2001) (rescinded 2003) (providing the procedures used by ONDA). The wilderness characteristics ONDA reviewed were those described in the Wilderness Act and incorporated into the FLPMA. In February 2004, ONDA submitted the results of its survey to the BLM. Because the survey was submitted well after the ROD was issued, it is not part of the administrative record. “However, in NEPA cases, the court may extend its review beyond the administrative record and permit the introduction of" }, { "docid": "6171228", "title": "", "text": "the motion for leave to file a surreply, ONDA contends that BLM presents new facts and raises new arguments in its reply brief and argues that ONDA should have an opportunity to respond to these new contentions. Specifically, ONDA argues that BLM makes new factual arguments about greater sage-grouse leks, raises reliability concerns regarding Dr. Miller’s GIS analysis, raises new arguments with regard to ONDA’s standing, and seeks to strike Dr. Miller’s second declaration. “When a party has raised new arguments or presented new evidence in a reply to an opposition, the court may permit the other party to counter the new arguments or evidence.” Jordan v. Terhune, No. CIV S-03-1820 LKK KJM P, 2009 WL 276764, at *3 (E.D.Cal. Feb. 5, 2009) (citing El Pollo Loco, Inc. v. Hashim, 316 F.3d 1032, 1040-41 (9th Cir.2003)); see also Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir.1996) (‘“[W]here new evidence is presented in a reply to a motion for summary judgment, the district court should not consider the new evidence without giving the [non]movant an opportunity to respond.’ ” (citation omitted)). Here, while I do not agree that all of the evidence and arguments ONDA identifies as “new” are, in fact, new, I will nevertheless grant ONDA’s motion for leave to file a surreply. After review of the proposed surreply, I find that it does not alter my conclusions. II. Standing BLM requests that the court grant summary judgment in its favor on ONDA’s claims relating to the East Cow Creek CX, the Three Rivers Southeast CX, the Rincon Flat CX, and the Chimney CX on the basis that ONDA lacks standing to challenge these decisions. BLM argues that, because “ONDA is challenging six discrete agency actions,” it must establish an injury-in-fact as to each agency decision. BLM’s Reply in Support of Cross Motion for Summary Judgment, # 54, at 8. Although BLM acknowledges that Dr. Miller’s declaration sufficiently asserts a geographic nexus to the areas impacted by the 2009 Andrews CX and the 2011 Andrews CX, BLM argues that ONDA has failed to present admissible evidence that Dr. Miller," }, { "docid": "17436721", "title": "", "text": "pursuant to the FOIA only “if the agency has contravened all three components of this obligation.” Id.; see also Spurlock v. FBI, 69 F.3d 1010, 1015 (9th Cir.1995). As with other types of civil cases, a suit under the FOIA can be rendered moot by events subsequent to its filing. The remedy requested here is one typical in a FOIA action: that the court “enjoin the agency from withholding agency records and ... order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). As we have previously observed, “the production of all nonexempt material, ‘however belatedly,’ moots FOIA claims.” Papa, 281 F.3d at 1013 (quoting Perry v. Block, 684 F.2d 121, 125 (D.C.Cir.1982)). That result obtains because once the defendant agency has fully complied with the FOIA’s production mandate, the plaintiff is no longer suffering or threatened with “an actual injury traceable to the defendant” that is “likely to be redressed by a favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (citation and quotation marks omitted); see also Carter, 780 F.2d at 1481; Cornucopia Inst., 560 F.3d at 675-76. To moot a FOIA claim, however, the agency’s production must give the plaintiff everything to which he is entitled. Otherwise, there remains some “effective relief’ that can be provided the plaintiff, and the case is not moot. Siskiyou Reg’l Educ. Project, 565 F.3d at 559 (citation omitted). A FOIA claim is not moot, for example, if the agency produces what it maintains is all the responsive documents, but the plaintiff challenges “whether the [agency’s] search for records was adequate.” Nw. Univ. v. Dep’t of Agric., 403 F.Supp.2d 83, 85-86 (D.D.C.2005); see also 5 U.S.C. § 552(a)(3)(C)-(D) (requiring agencies to conduct a search reasonably calculated to uncover all records responsive to the request). In that situation, there is still a live controversy regarding whether the agency is withholding records. See, e.g., Papa, 281 F.3d at 1013. The district court in this case held that when the VA offered the 157 emails to Yonemoto in his capacity as" }, { "docid": "11898819", "title": "", "text": "the plaintiffs in those cases that wilderness characteristics had to be considered in NEPA documents. . Several district courts are in accord with this analysis. See Or. Natural Desert Ass'n v. Shuford, No. 06-242-AA, 2007 WL 1695162 (D.Or. June 8, 2007) (upholding the BLM's NEPA wilderness analysis where the \"BLM evaluated ONDA’s proposed [wilderness areas] and identified one parcel ... as having wilderness characteristics”); Chihuahuan Grasslands Alliance v. Norton, 507 F.Supp.2d 1216, 1235-38 (D.N.M.2007) (recognizing the BLM's duty to \"address potential wilderness-quality lands through NEPA”); Or. Natural Desert Ass’n v. Rasmussen, 451 F.Supp.2d 1202, 1212-13 (D.Or.2006) (holding that the BLM has \"a responsibility to provide accurate information regarding any changes to the wilderness characteristics” in an area affected by its actions). . The BLM also suggests that it did not know there was a need for a new wilderness inventory because ONDA did not raise the issue during the initial scoping process for the Plan and EIS. But the question is not whether the BLM needed to conduct a full wilderness inventory under 43 U.S.C. § 1711 (although such an inventory may be appropriate). Such methodological questions are not at issue here. Instead, the question is whether the BLM was put on notice that it should address wilderness issues at all. It clearly was. ONDA submitted extensive comments concerning wilderness values in response to the draft EIS, on the assumption that the BLM could designate new WSAs, a power the BLM did not forego until later in the 2003 Utah settlement. ONDA also addressed the wilderness issue in its protest letter. All that is required of “[pjersons challenging an agency’s compliance with NEPA” is that they “structure their participation so that it ... alerts the agency to the parties' position and contentions, in order to allow the agency to give the issue meaningful consideration.” Great Basin Mine Watch v. Hankins, 456 F.3d 955, 965 (9th Cir.2006) (quoting Pub. Citizen, 541 U.S. at 764, 124 S.Ct. 2204 (second alteration in original)); see also Nw. Res. Info. Ctr. v. Nat'l Marine Fisheries Serv., 56 F.3d 1060, 1067 (9th Cir.1995) (stating that an" }, { "docid": "15139764", "title": "", "text": "Because the BLM had not responded to its wilderness concerns, ONDA decided to undertake a survey of land with wilderness characteristics outside of the WSAs, documenting changes that had occurred since November 1980, when the BLM completed the inventory supporting its 1991 preserva tion recommendations. See Or. Natural Desert Ass’n, Wilderness Inventory Recommendations: Yale District (“ONDA Survey”) (2004). In doing so, ONDA relied upon wilderness inventory procedures described in the BLM’s guidance documents. ONDA Survey at i-ii; see also Bureau of Land Mgmt., U.S. Dep’t of the Interior, BLM Wilderness Inventory and Study Procedures, H-6310-1 (“2001 Handbook”) 5-16 (2001) (rescinded 2003) (providing the procedures used by ONDA). The wilderness characteristics ONDA reviewed were those described in the Wilderness Act and incorporated into the FLPMA. In February 2004, ONDA submitted the results of its survey to the BLM. Because the survey was submitted well after the ROD was issued, it is not part of the administrative record. “However, in NEPA cases, the court may extend its review beyond the administrative record and permit the introduction of new evidence where the plaintiff alleges that an EIS has ... swept stubborn problems or serious criticism under the rug.” Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526-27 (9th Cir.1997) (internal quotation marks and alteration omitted). The survey was admitted in the district court on that ground, and the BLM does not appeal that ruling. We describe the survey here without expressly approving or disapproving its particular empirical findings. Instead, we discuss it to demonstrate how the presence of wilderness values may change over time, and how wilderness characteristics may have been reestablished in parts of the area covered by the Southeast Oregon Plan. ONDA explained that there had been significant changes since the BLM’s last inventory. Lands the BLM had previously determined lacked wilderness characteristics had reverted to a more natural state and, ONDA maintained, now did have such characteristics. Many of these changes occurred, ONDA reported, because little-used roads had deteriorated since November 1980. Because 16 U.S.C. § 1131(c)(1) defines wilderness as an area which “generally appears to have been affected" }, { "docid": "6171264", "title": "", "text": "compliance with [a resource-management plan].” Klamath Siskiyou Wildlands Ctr. v. Gerritsma, 962 F.Supp.2d 1230, 1235 (D.Or.2013) (citation omitted). In this case, I cannot conclude that BLM’s maintenance of already-existing roads violates the applicable resource-management plans. ONDA ignores BLM’s duty to manage the land for multiple uses, including grazing and protection against wildfires. Moreover, as BLM notes, each of the applicable resource-management plans specifically provides for road maintenance. Accordingly, I find that BLM did not act arbitrarily or capriciously when it determined that the road maintenance authorized by the six CXs complied with the resource-management plans for the Andrews Management Unit and the Three Rivers Resource Area, Consequently, I grant BLM’s cross motion for summary judgment to the extent it requests judgment in BLM’s favor on ONDA’s FLPMA claim. CONCLUSION For the foregoing reasons, ONDA’s motion for summary judgment (# 32) is denied, BLM’s motion to strike extra-record evidence (# 40) is denied as moot, BLM’s cross motion for summary judgment (# 44) is granted, and ONDA’s motion for leave to file a surreply (# 58) is granted. A final judgment should be prepared. . In addition to Article III standing, a plaintiff must meet the nonconstitutional or prudential standing requirements. Nuclear Info. & Res. Serv. v. Nuclear Regulatory Comm’n, 457 F.3d 941, 950 (9th Cir.2006). BLM does not argue that ONDA lacks prudential standing and, thus, I find it unnecessary to address this issue. . While BLM requests that the court strike Dr. Miller’s declarations and accompanying maps as extra-record evidence, BLM does not challenge the use of the declarations or maps for the purpose of determining whether ONDA has standing. See BLM’s Memo, in Support of Motion to Strike Extra-Record Evidence, # 41, at 2 n. 1. . Although ONDA lacks standing as to the East Cow Creek CX, I will proceed with my analysis of ONDA’s claims as if ONDA has standing to challenge all six CXs. . I note that BLM contends that, in finding that 43 C.F.R. § 46.215(b) did not apply with regard to each CX, it relied on two documents indicating that secondary roads" }, { "docid": "6171226", "title": "", "text": "Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). Further, “[d]eference to an agency’s technical expertise and experience is particularly warranted with respect to questions involving ... scientific matters.” United States v. Alpine Land & Reservoir Co., 887 F.2d 207, 213 (9th Cir.1989). However, the “presumption of agency expertise may be rebutted if its decisions, even though based on scientific expertise, are not reasoned.” Greenpeace v. Nat’l Marine Fisheries Serv., 80 F.Supp.2d 1137, 1147 (W.D.Wash.2000). Therefore, although the scope of review is narrow, the depth of review is substantial. Nw. Coal. for Alternatives to Pesticides, 544 F.3d at 1052 n. 7 (“ ‘[Although data interpretation and analysis are functions that often lie within an agency’s realm of expertise, it is our duty to review those functions to ascertain whether the agency’s actions were complete, reasoned, and adequately explained. The mere fact that an agency is operating in a field of its expertise does not excuse us from our customary review responsibilities.” (quoting Ctr. for Auto Safety v. Peck, 751 F.2d 1336, 1373 (D.C.Cir.1985) (Wright, J., dissenting))). III. Scope of Review The APA requires a court to “review the whole record or those parts of it cited by a party” when reviewing an agency action. 5 U.S.C. § 706. The “whole record” consists of “everything that was before the agency pertaining to the merits of its decision.” Portland Audubon Soc’y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir.1993). The whole record is not just what the agency submitted as the administrative record but also includes “all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency’s position.” Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir.1989) (citation omitted) (internal quotation mark omitted). DISCUSSION Before considering ONDA’s NEPA and FLPMA claims, I first address ONDA’s motion for leave to file a surreply, BLM’s argument that ONDA lacks standing to challenge the six CX decisions, and BLM’s motion to strike extra-record evidence. I. Motion for Leave to File a Surreply In the memorandum in support of" }, { "docid": "3271664", "title": "", "text": "covered by his various requests. Still, Walsh went ahead with his suit, seeking a judicial declaration that he was entitled to those records, along with costs and attorney fees. The district court granted the VA’s motion for summary judgment, finding' that Walsh’s claim was moot. Walsh appeals the grant of the VA’s motion and the denial of his motion for summary judgment, arguing that his claim is not moot under the FOIA and that he is entitled to judicial review under the Administrative Procedures Act (APA). We review the district court’s decision de novo. See Allen v. City of Chicago, 351 F.3d 306, 311 (7th Cir.2003). In general, “[o]nce the government produces all the documents a plaintiff requests, her claim for relief under the FOIA becomes moot.” Anderson v. U.S. Dep’t of Health & Human Servs., 3 F.3d 1383, 1384 (10th Cir.1993). See also Matter of Wade, 969 F.2d 241, 248 (7th Cir.1992) (“In FOIA cases, mootness occurs when requested documents have already been produced.”); DeBold v. Stimson, 735 F.2d 1037, 1040 (7th Cir.1984) (“Once the requested docu ments have been produced, the claim for relief under FOIA becomes moot.”); Perry v. Block, 684 F.2d 121, 125 (D.C.Cir.1982) (\"[H]owever fitful or delayed the release of information under the FOIA may be, once all requested records are surrendered, federal courts have no further statutory function to perform.”). Walsh contends that two related exceptions to the mootness doctrine apply to his claim: cases involving “voluntary cessation,” see Milwaukee Police Ass’n v. Jones, 192 F.3d 742, 747 (7th Cir.1999), and actions that are “capable of repetition yet evading review,” see Krislov v. Rednour, 226 F.3d 851, 858 (7th Cir.2000). Whether either doctrine applies to this case depends on the likelihood that Walsh will request additional documents and that the VA will again fail to produce them in a timely manner. See Milwaukee Police Ass’n, 192 F.3d at 747 (“Voluntary cessation of allegedly illegal conduct does not render a case moot unless the defendant can demonstrate that ‘there is no reasonable expectation that the wrong will be repeated.’ ” (quoting DiGiore v. Ryan, 172" } ]

[ { "docid": "23705757", "title": "", "text": "rise to a very substantial likelihood of irreparable misidentification.” Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir.1986), cert. denied, 482 U.S. 918, 107 S.Ct. 3196, 96 L.Ed.2d 683 (1987) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968)). It is the likelihood of misidentification that violates the defendant’s due process right. Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381-82, 34 L.Ed.2d 401 (1972). The due process concern is heightened when that misidentification is possible because the witness is called upon to identify a stranger whom she has observed only briefly, under poor conditions, and at a time of extreme emotional stress and excitement. See Manson v. Brathwaite, 432 U.S. 98, 112, 97 S.Ct. 2243, 2251-52, 53 L.Ed.2d 140 (1977); Simmons, 390 U.S. at 383-84, 88 S.Ct. at 970-71; United States v. Russell, 532 F.2d 1063, 1066 (6th Cir.1976). In assessing the validity of a pretrial identification, this court follows a two-step analysis. The court first considers whether the procedure was unduly suggestive. Thigpen, 804 F.2d at 895. The defendant bears the burden of proving this element. United States v. Hill, 967 F.2d 226, 230 (6th Cir.), cert. denied, — U.S. —, 113 S.Ct. 438, 121 L.Ed.2d 357 (1992). If the court does find that the procedure was unduly suggestive, it next evaluates the totality of the circumstances to determine whether the identification was nevertheless reliable. Id.; see also Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382-83; Thigpen, 804 F.2d at 895. Five factors that are considered in assessing the reliability of the identification include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention at the time of observation; (3) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated by the witness when confronting the defendant; and (5) the length of time between the crime and the confrontation. Manson, 432 U.S. at 114, 97 S.Ct. at 2253; Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382-83. The district" } ]

[ { "docid": "23006876", "title": "", "text": "purposes of our analysis we assume that it was in fact suggestive to an unnecessary degree. It is firmly established, however, that due process does not require the suppression of all in-court identifications following unnecessarily suggestive pretrial identification procedures. United States v. Field, 625 F.2d 862 (9th Cir.1980). Rather, we must determine whether, in light of the totality of surrounding circumstances, the pretrial “identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). “It is the likelihood of misidentifieation which violates a defendant’s right to due process .... ” Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972). Thus, even unnecessarily suggestive pretrial procedures do “not violate due process so long as the identification possesses sufficient aspects of reliability.” Manson v. Brathwaite, 432 U.S. 98, 106, 97 S.Ct. 2243, 2249, 53 L.Ed.2d 140 (1977). In Neil v. Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382, the Supreme Court set forth certain factors to be considered by determining whether identification testimony possesses sufficient indicia of reliability to justify its admission at trial: The opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and confrontation. Against these five factors must be weighed the “corrupting effect” of the suggestive pretrial identification procedure. Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253. In evaluating this corrupting effect, we give consideration to “the conduct on the part of the government agents tending to focus the witness’ attention on the defendant.” United States v. Crawford, 576 F.2d 794, 797 (9th Cir.), cert. denied, 439 U.S. 851, 99 S.Ct. 157, 58 L.Ed.2d 155 (1978) (footnote omitted). Applying the above analysis to the present case, we conclude that the identifi cation testimony of Larry Hill was" }, { "docid": "23087595", "title": "", "text": "“kind of looked like Johnny.” 1. Admission of the Pretrial Identification. We review the denial of a motion to suppress identification evidence for clear error. United States v. Hamilton, 684 F.2d 380, 383 (6th Cir.1982). The burden rests on Crockett to demonstrate that the pretrial identification procedure was impermissibly suggestive. United States v. Hill, 967 F.2d 226, 230 (6th Cir.1992). If Crockett can demonstrate that the police performed an unduly suggestive photographic lineup, then the trial court must determine, in light of all the circumstances, whether the unfair suggestiveness was conducive to a “very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Hill, 967 F.2d at 230. The Supreme Court has listed factors that a court should weigh in determining whether an identification is reliable, even though an unduly suggestive identification procedure may have been used. These factors are: 1) the witness’s opportunity to view the criminal at the time of the crime; 2) the witness’s degree of attention, 3) the accuracy of the witness’s prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 198-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (stating that the “likelihood of misidentification ... violates a defendant’s right to due process,” not a suggestive line-up per se). Before ruling on the admissibility of this evidence, the district court in this case carefully considered the reliability of the identification. The judge noted that there was only one photograph, that the witness did not observe the offense, but was certainly familiar with the suspect, and that the photograph was of “very good quality ... clearly portrayfing Crockett’s] facial features, as well as all of the other characteristics of his physical anatomy.” Although these observations are not necessarily helpful in evaluating all of the Biggers factors outlined above, they do properly address the question of reliability, the fundamental inquiry. This was not a typical police photo spread in which a witness is asked identify an" }, { "docid": "22656545", "title": "", "text": "confronted him, despite a suggestive lineup. The police then arranged a showup, at which the witness could make only a tentative identification. Ultimately, at yet another confrontation, this time a lineup, the witness was able to muster a definite identification. We held all of the identifications inadmissible, observing that the identifications were “all but inevitable” under the circumstances. Id., at 443. In the most recent case of Coleman v. Alabama, 399 U. S. 1 (1970), we held admissible an in-court identification by a witness who had a fleeting but “real good look” at his assailant in the headlights of a passing car. The witness testified at a pretrial suppression hearing that he identified one of the petitioners among the participants in the lineup before the police placed the participants in a formal line. Mr. Justice Brennan for four members of the Court stated that this evidence could support a finding that the in-court identification was “entirely based upon observations at the time of the assault and not at all induced by the conduct of the lineup.” Id., at 5-6. Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidenti-fication. It is, first of all, apparent that the primary evil to be avoided is “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U. S., at 384. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable” it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of mis-identification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process. What is" }, { "docid": "2287254", "title": "", "text": "[88 S.Ct. 967, 19 L.Ed.2d 1247], While the phrase was coined as a standard of determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable” it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. Id. at 198, 93 S.Ct. at 381. The Court applied the “totality of the circumstances” test to determine if “the [showup] identification was reliable even though the confrontation procedure was suggestive.” Id. at 199, 93 S.Ct. at 382. The Court then set out the so-called Big-gers’ factors: [T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Id. at 199-200, 93 S.Ct. at 382. Pierce contends that the “totality of the circumstances” rule of Stovall and Biggers is not the appropriate one to be applied in this case. Instead he argues for a per se exclusionary rule of identification testimony if a lineup is unduly suggestive. He asserts that even if Biggers sets the appropriate standard for showup cases, it should not be applied to lineup cases. According to Pierce’s theory a lineup is presented to a jury as a “laboratory experiment,” the results of which are generally more persuasive to a jury than the results of a showup, the inadequacies of which jurors can recognize for themselves. Pierce concludes that since this is presented as experimental laboratory evidence, that any undue suggestion is more prejudicial than a showup and therefore an exclusionary rule should be applied. The argument is not persuasive. Counsel for defendants are not precluded from bringing to a jury’s attention, either through testimony of the accused or others, any inadequacy in a lineup procedure. While it is to be hoped that both lineups and showups will be conducted in" }, { "docid": "12397561", "title": "", "text": "199, 93 S.Ct. at 382. Therefore, the Supreme Court has prescribed a two-step analysis for determining the admissibility of identification evidence. First, a defendant bears the burden of proving the identification procedure was impermissibly suggestive. Second, if the defendant proves that the identification procedures were impermissibly suggestive, the trial court must determine whether, under the totality of the circumstances, the testimony was nevertheless reliable. In Biggers, the Court listed five factors that must be considered when evaluating reliability: (1) the witness’s opportunity to view the criminal at the time of the crime; (2) the witness’s degree of attention at the time of the crime; (3) the accuracy of the witness’s prior description of the defendant; (4). the witness’s level of certainty when identifying the suspect at the confrontation; and (5) the length of time that has elapsed between the crime and the confrontation. Id. at 199-200, 93 S.Ct. at 382-83. If the defendant fails to show that the identification procedures were impermissibly suggestive, or if the totality of the circumstances indicates that the identification was otherwise reliable, then no due process violation has occurred. “As long as there is not a substantial likelihood of misidentification, it is the function of the jury to determine the ultimate weight to be given to the identification.” United States v. Causey, 834 F.2d 1277, 1285 (6th Cir.1987). The Court in Biggers held that there was no substantial likelihood of misidentification in the case, so the identification testimony was properly admissible. In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Court reviewed a photographic show-up identification. The witness in that case was an undercover police officer who had been given a photograph of the defendant by another officer based on the witness’s description of the defendant. At trial, and without objection, the undercover agent identified the defendant as the offender eight months after the incident and also testified to the photo identification. The Court discussed the merits of a per se suppression rule prohibiting admission of pretrial identifications based on show-up identifications absent exigent circumstances. Ultimately, the Court adopted" }, { "docid": "4834492", "title": "", "text": "Here, Espinal and Hernández objected at trial, and Tatis and Peguero did not. Identification evidence is for the jury in all but extraordinary cases and typically a “court should suppress identifications made before trial and in the courtroom on due process grounds only if it is persuaded that there was a very substantial likelihood of irreparable misidentification.” United States v. Rivera-Rivera, 555 F.3d 277, 282 (1st Cir.2009) (internal quotation marks and citation omitted). To determine whether suppression is called for, we apply a two-step analysis. We consider first whether the identification procedure that preceded the identification was unnecessarily suggestive. See id. at 283. If it was, then we ask whether the identification itself is reliable notwithstanding the suggestive procedure. See De León-Quiñones, 588 F.3d at 753. If the identification is reliable, it is admissible. See id. Reliability is the key; it is assessed by evaluating the totality of the circumstances and the analysis is witness specific. See id. at 753, 754. Some of the factors to be considered in assessing reliability are: “ ‘(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the defendant; (4) the level of certainty demonstrated by the witness at the confrontation; [and] (5) the length of time between the crime and the confrontation.’ ” Id. at 753-54 (quoting United States v. Henderson, 320 F.3d 92, 100 (1st Cir.2003)). This two-step inquiry into suggestiveness and reliability applies when a defendant (as two of them here do) alleges that his in-court identification was “tainted by an unnecessarily suggestive confrontation that occurred outside the presence of the jury.” Id. at 754. 1. Espinal’s Identification At trial, Avilés identified Espinal as the individual on the mothership who was directly in front of him when the light came on a second time after a bag of drugs had been dropped on Avilés’s hand. Espinal has two issues with this in-court identification. First, he claims it was tainted because Avilés saw Espinal’s photograph after the drug exchange and before" }, { "docid": "413404", "title": "", "text": "involved five witnesses being shown a single photo display of Anderson prior to his arrest or indictment, within ten days of their actual observation of him. All the witnesses had ample opportunity to view Anderson at close range and in good light for several minutes. In addition, the witnesses conversed with Anderson. Finally, four of the witnesses observed and spoke with Anderson after viewing the photo display. All of the witnesses were able to positively identify Anderson in court based upon the independent source of their personal observations which occurred both before and after the photo identification. In considering whether due process is violated by use of photo identification procedures, the Supreme Court, in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968), held that: each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The likelihood that misidentification may result from an unnecessarily suggestive identification procedure, and not the suggestive procedure itself, forms the basis for a violation of the defendant’s right to due process. Neil v. Biggers, 409 U.S. 188, 198-99, 93 S.Ct. 375, 381-82, 34 L.Ed.2d 401 (1972). The central question is whether under the “totality of the circumstances” the identification was reliable even though the procedure was suggestive. The factors to be considered in evaluating the likelihood of misidentification include “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and confrontation.” Id. at 199-200, 93 S.Ct. at 382; see Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18" }, { "docid": "1694664", "title": "", "text": "based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” 390 U.S. at 384, 88 S.Ct. at 971. Thus, an in-court identification is inadmissible only if the lineup is unnecessarily suggestive — i. e., there is a very substantial likelihood of misidentification — and from the totality of the circumstances the suggestive out-of-court identification results in a very substantial likelihood of irreparable misidentification. Neil v. Biggers, 1972, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401.. Thus, the test utilized to determine whether an in-court identification is admissible is: (1) whether the confrontation procedure was unnecessarily suggestive; and, if so, (2) whether under the “totality of the circumstances” the identification was reliable even though the confrontation procedure was suggestive. In Neil the Supreme Court, in holding that a rape victim’s in-court identification and her testimony pertaining to her station-house showup identification were admissible, even though the station-house showup may have been suggestive, stated: “Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification.’ Simmons v. United States, supra, 390 U.S., at 384, [88 S.Ct., at 971.] While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of ‘irreparable’ it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentifieation which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster [Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402]. Suggestive confrontations - are disapproved because they increase the likelihood of misidentifieation, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentifieation is" }, { "docid": "3762200", "title": "", "text": "a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (emphasis added). We have, of course, followed this teaching: Before excluding identification evidence, the court must be persuaded that there was a very substantial likelihood of irreparable misidentification. A court must also be mindful that it is only in extraordinary cases that identification evidence should be withheld from the jury- United States v. de Jesus-Rios, 990 F.2d 672, 677 (1st Cir.1993) (citations and quotation marks omitted); see also United States v. Watson, 76 F.3d 4, 6 (1st Cir.1996); United States v. Guzman-Rivera, 990 F.2d 681, 682 (1st Cir.1993). We use a two-step test to make this determination. See United States v. Lopez-Lopez, 282 F.3d 1, 10 (1st Cir.2002). The first step is to decide whether there was an impermissibly suggestive procedure. See id. We skip this step because the government has conceded that the photographic procedure was suggestive. Our next step is to “decide whether the identification itself was reliable under the totality of the circumstances, notwithstanding the suggestive procedure.” Id. at 10-11 (quoting Watson, 76 F.3d at 6). Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), is the keystone case on the determination of identification reliability. It enumerates five factors in the analysis: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the defendant; (4) the level of certainty demonstrated by the witness at the confrontation; (5) the length of time between the crime and the confrontation. We make our analysis bearing in mind that “reliability is the linchpin in determining the admissibility of identification testimony.” Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). We start with the testimony of Mozynski. As far as the first factor, Moz-ynski had at least three opportunities to view the defendant closely. This was not" }, { "docid": "22049208", "title": "", "text": "384 [88 S.Ct. [967] at 971, 19 L.Ed.2d 1247]. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of ‘irreparable’ it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process.” 409 U.S. at 198, 93 S.Ct. at 381 (footnote omitted). Because the possibility of “irreparable misidentification” is as great when the identification is from a tape-recording as when it is from a photograph or a line-up, we hold that the same due process protection should apply to either method. No litmus paper test is available to evaluate the constitutional adequacy of the identification procedures used in any particular case. Rather, as stated by the Supreme Court in Neil, the “central question [is] whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” 409 U.S. at 199, 93 S.Ct. at 382. This is, in essence, the test used by this Court in evaluating challenges to identification procedures. United States v. Baxter, 492 F.2d 150 (9 Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974). The Supreme Court decision in Neil and our decision in Baxter enumerate a number of factors to be considered in evaluating the “totality of the circumstances” of a specific case. In Baxter this Court gave careful consideration to the proper analysis of a photographic identification procedure claimed to be improperly suggestive. Although not all of the factors mentioned in Baxter apply to the identification of a tape-recorded voice, the general approach" }, { "docid": "1694666", "title": "", "text": "gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process. “What is less clear from our cases is whether, as intimated by the District Court, unnecessary suggestiveness alone requires the exclusion of evidence. While we are inclined to agree with the courts below that the police did not exhaust all possibilities in seeking persons physically comparable to petitioner, we do not think that the evidence must therefore be excluded. . . “We turn, then, to the central question, whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentifieation include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. . . .” (Footnotes omitted.) (Emphasis supplied.) 409 U.S. at 198-199, 93 S.Ct. at 381. In the instant case, petitioner, who was age 47, was placed in a lineup whose other members, aged 18, 19, 24 and 28, were all much younger than he. For this reason petitioner contends the lineup was unnecessarily suggestive. Petitioner presented no evidence as to whether the other participants in the lineup were physically comparable (e. g., height, weight, complexion, manner of dress, etc.) to him. The court, merely on the basis of the age difference here, is not convinced that the lineup was so suggestive that there was a very substantial likelihood of misidentification. However, even if the lineup, because of the age differential, were to be considered suggestive, it cannot be viewed as so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification; given “the totality of the circumstances” Noll’s in-court identification of the petitioner was reliable. These factors, following the analysis suggested in Neil v. Biggers, supra, have prompted the court to" }, { "docid": "979212", "title": "", "text": "the tainted identification and introduce subsequent identifications or have the witness make an in-court identification if satisfied that these stemmed from the original observation of the defendant rather than the tainted identification. United States ex rel. Phipps v. Follette, 428 F.2d 912 (2 Cir. 1970), cert. denied, 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146 (1970); United States ex rel. Gonzalez v. Zelker, supra, 477 F.2d at 801-05. Here there would have been no occasion to consider whether Glover’s in-court identification rested on his original observation (except for the bearing of this on a new trial) since the admission of the photographic identification would have been fatal constitutional error. A passage in Neil v. Biggers, supra, 409 U.S. at 198, 93 S.Ct. at 381, calls this analysis into some question. After saying that “the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification,’ ” the inner quote being from Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. at 971, Mr. Justice Powell continued: While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable” it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process. (Footnote omitted.) If this stood alone, it would strongly support a conclusion that the Court intended the “very substantial likelihood of misidentification” test to apply to show-up or photographic identifications that were impermissibly and unnecessarily suggestive as well as to later out-of-court or in-court identifications. However, Mr. Justice Powell also said, 409 U.S. at 198-99," }, { "docid": "12397560", "title": "", "text": "in that case. The victim in the hospital was in very serious condition, and if that defendant were not the culprit then his chance for exoneration might be lost. The court found that the police followed the only possible procedure under the circumstances. In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Court dealt with the case of an identification by a rape victim of a man at the police station without the benefit of a photopack. After reviewing the case law, the Supreme Court stated: It is the likelihood of misidentification which violates a defendant’s right to due process.... Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. Id. at 198, 93 S.Ct. at 381-82. The Court held, however, that a court need not exclude testimony concerning an identification derived from unnecessarily suggestive procedures if the totality of the circumstances indicates that the evidence is reliable. Id. at 199, 93 S.Ct. at 382. Therefore, the Supreme Court has prescribed a two-step analysis for determining the admissibility of identification evidence. First, a defendant bears the burden of proving the identification procedure was impermissibly suggestive. Second, if the defendant proves that the identification procedures were impermissibly suggestive, the trial court must determine whether, under the totality of the circumstances, the testimony was nevertheless reliable. In Biggers, the Court listed five factors that must be considered when evaluating reliability: (1) the witness’s opportunity to view the criminal at the time of the crime; (2) the witness’s degree of attention at the time of the crime; (3) the accuracy of the witness’s prior description of the defendant; (4). the witness’s level of certainty when identifying the suspect at the confrontation; and (5) the length of time that has elapsed between the crime and the confrontation. Id. at 199-200, 93 S.Ct. at 382-83. If the defendant fails to show that the identification procedures were impermissibly suggestive, or if the totality of the circumstances indicates that the identification was" }, { "docid": "1694665", "title": "", "text": "though the station-house showup may have been suggestive, stated: “Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification.’ Simmons v. United States, supra, 390 U.S., at 384, [88 S.Ct., at 971.] While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of ‘irreparable’ it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentifieation which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster [Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402]. Suggestive confrontations - are disapproved because they increase the likelihood of misidentifieation, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentifieation is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process. “What is less clear from our cases is whether, as intimated by the District Court, unnecessary suggestiveness alone requires the exclusion of evidence. While we are inclined to agree with the courts below that the police did not exhaust all possibilities in seeking persons physically comparable to petitioner, we do not think that the evidence must therefore be excluded. . . “We turn, then, to the central question, whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentifieation include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." }, { "docid": "22656546", "title": "", "text": "lineup.” Id., at 5-6. Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidenti-fication. It is, first of all, apparent that the primary evil to be avoided is “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U. S., at 384. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable” it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of mis-identification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process. What is less clear from our cases is whether, as intimated by the District Court, unnecessary suggestiveness alone requires the exclusion of evidence. While we are inclined to agree with the courts below that the police did not exhaust all possibilities in seeking persons physically comparable to respondent, we do not think that the evidence must therefore be excluded. The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available, and would not be based on the assumption that in every instance the admission of evidence of such a confrontation offends due process. Clemons v. United States, 133 U. S. App. D. C. 27, 48, 408 F. 2d 1230, 1251 (1968) (Leventhal, J., concurring); cf. Gilbert v. California, 388 U. S. 263, 273 (1967); Mapp v. Ohio, 367 U. S. 643 (1961). Such a rule would have no place in the present case, since both the confrontation and the trial preceded Stovall v. Denno, supra, when" }, { "docid": "2287253", "title": "", "text": "telling the witness that “[tjhis is the man,” the Court concluded that the procedure was so unduly suggestive that it was conducive to mistaken identification. In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the Court held, despite prior unanimous court of appeals’ approval to the contrary, that the Wade right to counsel would not be extended to pre-indictment lineups. The Court said: When a person has not been formally charged with a criminal offense. Sto-vall strikes the appropriate constitutional balance between the right of a suspect to be protected from prejudicial procedures and the interest of society'in the prompt and purposeful investigation of an unsolved crime. Id. at 691, 92 S.Ct. at 1883. Finally in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), where the petitioner challenged a show-up that took place seven months after the crime, the Court said: [T]hat the primary evil to be avoided is “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. [377], at 384 [88 S.Ct. 967, 19 L.Ed.2d 1247], While the phrase was coined as a standard of determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable” it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. Id. at 198, 93 S.Ct. at 381. The Court applied the “totality of the circumstances” test to determine if “the [showup] identification was reliable even though the confrontation procedure was suggestive.” Id. at 199, 93 S.Ct. at 382. The Court then set out the so-called Big-gers’ factors: [T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Id. at 199-200, 93 S.Ct. at 382. Pierce contends that the" }, { "docid": "22049207", "title": "", "text": "Turley a tape-recorded telephone conversation between Mr. Adell and one of the kidnappers. Officer Turley identified the caller as Pheaster. In seeking this identification, the agent mentioned no other names and played no other recorded voices to Officer Turley. The pretrial identification procedure challenged on this appeal is unusual, involving an auditory rather than a visual identification of a defendant. Although we have not been directed to other cases involving similar circumstances, the standards that we must apply are nonetheless clear. In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Supreme Court synthesized its previous decisions involving suggestive identification procedures. Although Neil and the other cases discussed therein involved only visual identifications, the following quotation from Neil clearly indicates that suggestive identification procedures are fungible: “Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification.’ Simmons v. United States, 390 U.S. [377] at 384 [88 S.Ct. [967] at 971, 19 L.Ed.2d 1247]. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of ‘irreparable’ it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process.” 409 U.S. at 198, 93 S.Ct. at 381 (footnote omitted). Because the possibility of “irreparable misidentification” is as great when the identification is from a tape-recording as when it is from a photograph or a line-up, we hold that the same due" }, { "docid": "21718109", "title": "", "text": "due process, a criminal defendant has the right not to be subjected to suggestive police identification procedures that create a “very substantial likelihood of irreparable misidentification.” Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). This does not mean that all suggestive identification procedures raise a constitutional issue. First, the challenged procedure must be “unnecessarily suggestive.” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Second, it must lead to such inherent unreliability that it is inappropriate for a jury to determine the weight to give the evidence; unnecessary suggestiveness in and of itself does not violate due process. See Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Thus, the “central question” is “whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” Id. at 199, 93 S.Ct. 375. This reflects the fact that, “the primary evil to be avoided is a very substantial likelihood of irreparable misidentification.” Id. at 198, 93 S.Ct. 375 (internal quotations omitted); see also Brathwaite, 432 U.S. at 114, 97 S.Ct. 2243 (“We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony”). There was also relevant federal law that was unclear at the time petitioner’s state court conviction became final. In Neil v. Biggers and Manson v. Brathwaite, the Supreme Court set forth a list of five factors for lower federal courts to balance against suggestiveness when deciding whether a pre-trial identification, in addition to being “unnecessarily suggestive,” creates a “very substantial likelihood of irreparable misidentification.” Specifically, Justice Blackmun wrote in Brathwaite: The factors to be considered are set out in Biggers. These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." }, { "docid": "1363934", "title": "", "text": "defendant’s conduct. Accordingly, this proposition of law is not well-taken. Jells, 559 N.E.2d at 472. B. Legal Standard Pretrial identification procedures violate due process where the procedures are “unnecessarily suggestive and conducive” such that they risk “irreparable mistaken identification.” Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Supreme Court held that identifications obtained through suggestive means may still be admissible if they are reliable. Id. at 196-97, 93 S.Ct. 375. In determining whether they are reliable, “the central question” is “whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” Id. at 199, 93 S.Ct. 375. [T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and confrontation. Id. at 199-200, 93 S.Ct. 375. C. Analysis Although it is clear that the pretrial identification procedure was unduly suggestive, the Ohio Supreme Court did not unreasonably determine that the iden- tifícation was nonetheless reliable. The five factors to be weighed in determining reliability are: (1) the opportunity of the witness to view the perpetrator during the crime; (2) the witness’s degree of attention to the perpetrator; (3) the accuracy of the witness’s prior descriptions of the perpetrator; (4) the level of certainty demonstrated by the witness when identifying the suspect; and (5) the length of time between the crime and the identification. Neil, 409 U.S. at 199-200, 93 S.Ct. 375. We weigh these factors against the corrupting effect of the suggestive identification itself. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Despite the impermissibly suggestive procedure, Wright’s identification of Jells was still sufficiently reliable. At trial, Wright testified that he was working as a security" }, { "docid": "979213", "title": "", "text": "coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable” it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process. (Footnote omitted.) If this stood alone, it would strongly support a conclusion that the Court intended the “very substantial likelihood of misidentification” test to apply to show-up or photographic identifications that were impermissibly and unnecessarily suggestive as well as to later out-of-court or in-court identifications. However, Mr. Justice Powell also said, 409 U.S. at 198-99, 93 S.Ct. at 382: What is less clear from our cases is whether, as intimated by the District Court, unnecessary suggestiveness alone requires the exclusion of evidence. . . . The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available and would not be based on the assumption that in every instance the admission of evidence of such a confrontation offends due process. Clemons v. United States, 133 U.S.App.D.C. 27, 48, 408 F.2d 1230, 1251 (1968) (Leventhal, J., concurring); cf. Gilbert v. California, 388 U.S. 263, 273, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Such a rule would have no place in the present case, since both the confrontation and the trial preceded Stovall v. Denno, supra, when we first gave notice that the suggestiveness of confrontation procedures was anything other than a matter to be argued to the jury." } ]

[ { "docid": "22748467", "title": "", "text": "of ‘no reason for the stock’s activity,’ and that ‘management is unaware of any present or pending corporate development that would result in the abnormally heavy trading activity,’ information concerning ongoing acquisition discussions becomes material by virtue of the statement denying their existence. . . . “. . . In analyzing whether information regarding merger discussions is material such that it must be affirmatively disclosed to avoid a violation of Rule 10b-5, the discussions and their progress are the primary considerations. However, once a statement is made denying the existence of any discussions, even discussions that might not have been material in absence of the denial are material because they make the statement made untrue.” 786 F. 2d, at 748-749 (emphasis in original). This approach, however, fails to recognize that, in order to prevail on a Rule 10b-5 claim, a plaintiff must show that the statements were misleading as to a material fact. It is not enough that a statement is false or incomplete, if the misrepresented fact is otherwise insignificant. C Even before this Court’s decision in TSC Industries, the Second Circuit had explained the role of the materiality requirement of Rule 10b-5, with respect to contingent or speculative information or events, in a manner that gave that term meaning that is independent of the other provisions of the Rule. Under such circumstances, materiality “will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.” SEC v. Texas Gulf Sulphur Co., 401 F. 2d, at 849. Interestingly, neither the Third Circuit decision adopting the agreement-in-principle test nor petitioners here take issue with this general standard. Rather, they suggest that with respect to preliminary merger discussions, there are good reasons to draw a line at agreement on price and structure. In a subsequent decision, the late Judge Friendly, writing for a Second Circuit panel, applied the Texas Gulf Sulphur probability/magnitude approach in the specific context of preliminary merger negotiations. After acknowledging that materiality is something to" } ]

[ { "docid": "12494721", "title": "", "text": "material even if there is only a probability that the change will occur or if it is merely contingent upon future events. In Basic Inc., the Supreme Court considered the issue concerning when negotiation of a corporate merger would be considered material. The Court held that the materiality of a contingent event “will dépend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.” 485 U.S. at 238, 108 S.Ct. at 987 (quoting SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2nd Cir.1968) (en banc)). The Court then went on to consider the means by which a factfinder could determine the “probability” and “magnitude” of a potential merger. In this respect, the Court in Basic Inc. stated: Whether merger discussions in any particular case are material therefore depends on the facts. Generally, in order to assess the probability that the event will occur, a factfinder will need to look to indicia of interest in the transaction at the highest corporate levels. Without attempting to catalog all such possible factors, we note by way of example that board resolutions, instructions to investment bankers, and actual negotiations between principals or their intermediaries may serve as indicia of interest. To assess the magnitude of the transaction to the issuer of the securities allegedly manipulated, a factfinder will need to consider such facts as the size of the two corporate entities and of the potential premiums over market value. No particular event or factor short of closing the transaction need be either necessary or sufficient by itself to render merger discussions material. 485 U.S. at 239, 108 S.Ct. at 987. In Basic Inc., the Supreme Court specifically refused to adopt a bright-line test which would have considered the disclosure of facts pertaining to merger negotiations immaterial as a matter of law until the parties had reached an agreement-in-principle. Id. 485 U.S. at 236, 108 S.Ct. at 986. However, in cases decided after Basic Inc., a number of courts, including" }, { "docid": "6620615", "title": "", "text": "Id. at 231-32, 108 S.Ct. at 983-84 (quoting TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976)). Further, for an omission to violate Rule 10b-5, “ ‘there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the “total mix” of information made available.’ ” Basic, 485 U.S. at 231-32, 108 S.Ct. at 983 (quoting TSC Industries, Inc. v. Northway, Inc., 426 U.S. at 449, 96 S.Ct. at 2132). The mere fact that a company has received an acquisition overture or that some discussion has occurred will not necessarily be material. “Those in business routinely discuss and exchange information on matters which may or may not eventuate in some future agreement.” Taylor v. First Union Corp., 857 F.2d 240, 244 (4th Cir.1988), cert. denied, 489 U.S. 1080, 109 S.Ct. 1532, 103 L.Ed.2d 837 (1989); see also Jackvony v. Riht Financial Corp., 873 F.2d 411, 415 (1st Cir.1989) (finding immaterial “the type of concern about possible acquisition that many large companies frequently express”). As stated in Basic, the materiality of a possible future event “ ‘will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.’ ” 485 U.S. at 238, 108 S.Ct. at 987 (quoting SEC v. Texas Gulf Sulfur Co., 401 F.2d 833, 849 (2d Cir.1968) (en banc), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969)). Basic instructed courts to assess the probability of an event by looking at the “indicia of interest in the transaction at the highest corporate levels” and by considering, inter alia, “board resolutions, instructions to investment bankers, and actual negotiations between principals or their intermediaries ... as indicia of interest.” 485 U.S. at 239, 108 S.Ct. at 987. Whether merger discussions in any particular case are material or immaterial will normally depend on the facts of the case. Id. The record in the" }, { "docid": "6620616", "title": "", "text": "concern about possible acquisition that many large companies frequently express”). As stated in Basic, the materiality of a possible future event “ ‘will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.’ ” 485 U.S. at 238, 108 S.Ct. at 987 (quoting SEC v. Texas Gulf Sulfur Co., 401 F.2d 833, 849 (2d Cir.1968) (en banc), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969)). Basic instructed courts to assess the probability of an event by looking at the “indicia of interest in the transaction at the highest corporate levels” and by considering, inter alia, “board resolutions, instructions to investment bankers, and actual negotiations between principals or their intermediaries ... as indicia of interest.” 485 U.S. at 239, 108 S.Ct. at 987. Whether merger discussions in any particular case are material or immaterial will normally depend on the facts of the case. Id. The record in the present case did not disclose any genuine issue to be tried as to whether the September Releases at the time they were issued misstated or omitted any information that was material. Glazers’ contentions (a) that defendants sought by those releases to depress the market price of Formica stock by misrepresenting that the company was not available, and (b) that as of September 30 there was material activity by defendants looking toward an LBO, were not supported by evidence sufficient to take the matter to a jury. Glazers presented no evidence that could lead a rational juror to infer that a reasonable investor would have construed the September Releases as representations that the company was not available for acquisition. The second release stated explicitly that Formica would “consider any legitimate proposal to acquire the company.” One newspaper thus headlined the story “Formica for sale.” Arbitrageurs were reported as speculating on the price the company might bring in an acquisition. And Malcolm himself complained that the company’s refusal to entertain his offer was contrary to its “announcement" }, { "docid": "12494720", "title": "", "text": "232, 108 S.Ct. 978, 983, 99 L.Ed.2d 194 (1988). This same standard of materiality has been applied by various courts in connection with claims asserted under other provisions of the federal securities laws which prohibit false statements or omissions of material fact. See IV L. Loss & J. Seligman, Securities Regulation at 2063, n. 372 (3rd ed. 1990) (collecting cases). Furthermore, the standard of materiality for purposes of common law fraud is essentially identical to the standard set forth in TSC Industries. Restatement (Second) of Torts, § 538 (1977) (matter is material if “a reasonable man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question”), cited with approval, Golt v. Phillips, 308 Md. 1, 10, 517 A.2d 328 (1986). Thus, in order to prevail on any of the claims asserted in this case, plaintiffs must prove that defendants’ alleged false statements and omissions were material as that term was defined in TSC Industries. A corporation’s consideration of a major change in corporate form can be material even if there is only a probability that the change will occur or if it is merely contingent upon future events. In Basic Inc., the Supreme Court considered the issue concerning when negotiation of a corporate merger would be considered material. The Court held that the materiality of a contingent event “will dépend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.” 485 U.S. at 238, 108 S.Ct. at 987 (quoting SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2nd Cir.1968) (en banc)). The Court then went on to consider the means by which a factfinder could determine the “probability” and “magnitude” of a potential merger. In this respect, the Court in Basic Inc. stated: Whether merger discussions in any particular case are material therefore depends on the facts. Generally, in order to assess the probability that the event will occur, a factfinder will need to look to" }, { "docid": "23081191", "title": "", "text": "information was not sufficiently certain or significant to be considered material. We have never held—nor even hinted—that forward-looking information or intra-quarter data cannot, as a matter of law, be material. Nor has any other court for that matter, at least to the best of our knowledge. Indeed, both the Supreme Court’s landmark decision in Basic and preexisting Ninth Circuit authority confirm that so-called “soft” information can, under the proper circumstances, be “material” within the meaning of Rule 10b~5. In Basic—the very case that announced the governing standard for Rule 10b-5 materiality—the Supreme Court dealt specifically with preliminary merger negotiations, events it dubbed “contingent or speculative in nature.” Id. at 232, 108 S.Ct. 978. And although the Basic Court acknowledged that its decision did not concern “earnings forecasts or projections” per se, id. at 232 n. 9, 108 S.Ct. 978, it expressly adopted a “fact-intensive inquiry” to govern the materiality of “contingent or speculative information or events,” id. at 238-40, 108 S.Ct. 978. It held that, with respect to forward-looking information, materiality “will depend at any given time upon a balancing of both the indicated probability that the event will occur- and the anticipated magnitude of the event in light of totality of the company activity.” Id. at 238, 108 S.Ct. 978 (quoting Texas Gulf Sulphur, 401 F.2d at 849). The Court’s fact-specific approach fatally undermines Smith’s claim that forward-looking information cannot, as a matter of law, be material. Likewise, only recently, in Fehn, 97 F.3d 1276, we specifically invoked the Basic standard for “determining the materiality of a corporate event that has not yet occurred.” Id. at 1291. Even more to the point is Marx v. Computer Sciences Corp., 507 F.2d 485 (9th Cir.1974), a ease brought by disgruntled investors against a corporation under § 10(b) and Rule 10b-5. There, we stated unambiguously: Nor can there be any doubt that the forecast of earnings was a “material” fact. The applicable test of materiality is essentially objective: “... whether ‘a reasonable man would attach importance (to the fact misrepresented) in determining his choice of action in the transaction in question.’ ”" }, { "docid": "2817009", "title": "", "text": "14 statement was either materially misleading when issued or became so thereafter and Heublein failed to correct it. Therefore, the resolution of this appeal turns on the scope and character of a corporation’s duty to disclose information to the investing public. Our analysis will follow two steps: (1) when does a duty to disclose arise in the context of merger/anti-takeover discussions, see Staffin v. Greenberg, 672 F.2d 1196 (3d Cir. 1982); and (2) when a voluntary public statement is made, under what circum stances will it be materially misleading when issued or become so on the basis of subsequent events, see Securities and Exchange Commission v. Texas Gulf Sulphur Co., 401 F.2d 833 (2d Cir.1968), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969). III. Rule 10b-5 and § 10(b) of the Act make it unlawful to fail to disclose material information in connection with the purchase or sale of securities. Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980); Securities and Exchange Commission v. Texas Gulf Sulphur Co., 401 F.2d 833 (2d Cir.1968), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969). Similarly, § 14(e) of the Act requires that statements made in connection with proxy solicitations and tender offers set forth all material facts. Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977). Such disclosures are required to insure that all investors have similar relevant information upon which to base investment decisions and to protect the basic integrity and fairness of the exchange markets. Rochelle v. Marine Midland Grace Trust Co., 535 F.2d 523 (9th Cir.1976). If a corporation is not trading in its securities and is not otherwise under a duty to disclose material corporate information, but it voluntarily chooses to make a public statement, if that statement is “reasonably calculated to influence the investing public ...” the corporation has a duty to disclose sufficient information so that the statement made is not “false or misleading or ... so incomplete as to mislead____” Texas Gulf Sulphur, 401 F.2d at 862." }, { "docid": "6109285", "title": "", "text": "to disclose the parties’ discussions and negotiations regarding the Sonus License Agreement prior to the time that MBI consummated the agreement in early January 2001.” (Def. Mem., 27.) But it is clear that the law does not require that a contract be finalized in order for it to be material. In SEC v. Texas Gulf Sulphur Co., the Second Circuit held that material facts include those that “affect the probable future of the company and [that] may affect the desire of investors to buy, sell, or hold the company’s securities.” 401 F.2d 833, 849 (2d Cir.1968) (en banc). An event need not be finalized to be material. “When contingent or speculative events are at issue, the materiality of those events depends on “a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.” ” Castellano v. Young & Rubicam, Inc., 257 F.3d 171, 180 (2d Cir.2001) (quoting Basic Inc. v. Levinson, 485 U.S. 224, 238, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (quoting Texas Gulf Sulphur Co., 401 F.2d at 849)). So the fact that the Sonus License agreement was not finalized until early January 2001 is not, as defendants claim, “fatal” to plaintiffs’ case. Defendants argue in the alternative that, even if the Sonus License Agreement had existed as of the relevant date, the statement above was not rendered misleading because of the agreement. Defendants assert that there is no evidence in the record that, as a result of the agreement, (1) “MBI did not rely on its product partners with respect to Optison,” (2) “there was any guarantee that [its product partners] would market Optison effectively,” or (3) “there was not the possibility of future patent disputes regarding Optison.” (Def.Mem., 29) (emphasis in original). Defendants correctly observe that there is no evidence in the record of these facts or any other facts that would make the statement overtly false. Nevertheless, plaintiffs have raised a genuine issue of material fact as to whether the above statement was rendered misleading by the Sonus" }, { "docid": "335575", "title": "", "text": "618 F.2d 198 (2d Cir.1980); Straus v. Holiday Inns, Inc., 460 F.Supp. 729, 736 (S.D.N.Y.1978). The leading case in this circuit concerning the applicability of the materiality standard to prospective or contingent events is SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (2d Cir.1968) (in banc), cert. denied sub nom. Kline v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969). That case involved both the corporation’s liability under Section 10(b) and Rule 10b-5 with respect to a press release which it issued concerning a finding of mineral ores in eastern Canada, and the liability thereunder of corporate insiders who purchased the corporation’s stock prior to full public disclosure of the finding. Addressing the second question, we said: [MJaterial facts include not only information disclosing the earnings and distributions of a company but also those facts which affect the probable future of the company and those which may affect the desire of investors to buy, sell, or hold the company’s securities. In each case, then, whether facts are material within Rule 10b-5 when the facts relate to a particular event and are undisclosed by those persons who are knowledgeable thereof will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity. Id. at 849. Because this standard was articulated in the insider trading context, a qualification must be expressed at the outset concerning its application here. An insider may be liable for trading on the basis of, or “tipping” third parties concerning, information at a time when the corporation to which the information pertains is not yet under any duty to disclose it. See, e.g., SEC v. Geon Indus., Inc., 531 F.2d 39, 48 (2d Cir.1976). On the other hand, we do not address here a pure question of a duty to disclose. The Prospectus issued by TWA indisputably addressed itself to the ongoing relationship between TWA and TWC, and was obviously required to address that relationship. Accordingly, the issue we must consider" }, { "docid": "19831370", "title": "", "text": "v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), the Supreme Court addressed the question of how this standard of materiality applies to preliminary merger negotiations. The Court expressly rejected the view that merger negotiations are immaterial as a matter of law until the parties have reached an agreement-in-prineiple as to price and structure. Id. at 236, 108 S.Ct. at 986. Instead, Basic adopted the standard previously articulated by the Second Circuit in SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir.1968), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969). Under that standard, “materiality “will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of company activity.’” 485 U.S. at 238, 108 S.Ct. at 987. In adopting this test, the Basic Court noted that it is a very fact-specific standard. Id. at 239-40, 108 S.Ct. at 987-88. Even before the Basic decision, the Second Circuit had held that this standard of materiality is applicable to Section 11 claims. See Kronfeld v. Trans World Airlines, Inc., 832 F.2d 726, 731-32 (2d Cir.1987), cert. denied, 485 U.S. 1007, 108 S.Ct. 1470, 99 L.Ed.2d 700 (1988). More recently, this court has been among those to note that the flexible standard articulated in Basic governs questions regarding the materiality of contingent events. See, e.g., Seagoing Uniform Corp. v. Texaco, Inc., 705 F.Supp. 918, 929-30 (S.D.N.Y.1989); Kamerman v. Steinberg, 123 F.R.D. 66, 71 (S.D.N.Y.1988). Even under this standard, it does not appear that Nelson can establish a material omission. In order to grant Nelson the benefit of the doubt to which he is entitled, it is important to remember that Paramount and Viacom had reached an agreement in principle on some key issues prior to the breakdown in their negotiations. However, at the time of the registration statement at issue here, all Paramount knew with regard to Viacom was that negotiations had broken off but the two corporations were still “in contact.” Even if" }, { "docid": "23629741", "title": "", "text": "investor as having significantly altered the ‘total mix’ of information made available.” Id. at 231-32, 108 S.Ct. at 983 (quoting TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976)). Thus, materiality is a “fact-specific inquiry,” which “depends on the significance the reasonable investor would place on the withheld or misrepresented information.” Id. at 240,108 S.Ct. at 988 (footnote omitted). With respect to “contingent or speculative information or events,” materiality “ “will depend ... upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.’ ” Id. at 238, 108 S.Ct. at 987 (quoting SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir.1968) en banc), cert. denied sub nom., Coates v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969)). In the midst of this discussion of the materiality requirement the Court also emphasized that in order to meet its burden under this first factor “a plaintiff must show that the statements were misleading as to a material fact,” id. (emphasis in original), and that “[t]o be actionable, of course, a statement must also be misleading.” Id. at 239 n. 17, 108 S.Ct. at 987-88 n. 17. Moreover, all averments of fraud are required by Fed. R.Civ.P. 9(b) to be “stated with particularity.” Where fraudulent projections are alleged, the plaintiff must therefore identify in the complaint with specificity some reason why the discrepancy between a company’s optimistic projections and its subsequently disappointing results is attributable to fraud. Borow v. nVIEW Corp., 829 F.Supp. 828, 833 (E.D. Va.1993), aff'd mem., 27 F.3d 562 (1994); see also DiLeo v. Ernst & Young, 901 F.2d 624, 627-28 (7th Cir.), cert. denied, 498 U.S. 941, 111 S.Ct. 347, 112 L.Ed.2d 312 (1990). Mere allegations of “fraud by hindsight” will not satisfy the requirements of Rule 9(b). Borow, 829 F.Supp. at 833 (citing Denny v. Barber, 576 F.2d 465, 470 (2d Cir.1978)); see also Greenstone v. Cambex Corp., 975 F.2d 22, 25-27 (1st Cir.1992)" }, { "docid": "22322893", "title": "", "text": "amount equal to approximately 28.5% of Wellington’s $7 offering price) should not have been set forth in the offer in the first instance. Nor do we have any difficulty in concluding that Wellington should have disclosed the prospect that if its offer should be fully successful Sonesta common stock could have lost its listing privileges on the New York Stock Exchange. Judge Ryan concluded that the possibility of delisting was too speculative to make this omission material. We disagree. Section A-16 of the Exchange Rules permits but does not require removal or suspension of a listed security if the publicly held shares number less than 600,000 and their aggregate market value is less than $5 million. Of Sones-ta’s 2,393,817 outstanding shares, 1,572,839 were publicly held according to the Exchange’s definition, the balance of 820,978 being owned by officers and directors of Sonesta and their immediate families. If Wellington had achieved its goal of acquiring 1,000,000 shares, the publicly held stock would have been reduced below the Exchange standards in both number and aggregate value. Wellington again suggests that it could not know in advance how many Sonesta shareholders would accept its offer. Sonesta counters, by affidavit of its general counsel, that the Exchange had advised Sonesta that it could lose its listing privileges if Wellington’s offer was successful. Under these circumstances the risk of delisting was sufficiently appreciable to require disclosure. As we stated in SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir. 1968), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969): “[W]hether facts are material when the facts relate to a particular event . . . will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.” Loss of listing on the Exchange would deprive Sonesta shareholders of a ready market for their shares and of the protection of certain Exchange requirements, including its disclosure rules. The possibility of losing these advantages could certainly have been of" }, { "docid": "23235628", "title": "", "text": "abstain from trading in or recommending the securities concerned while such inside information remains undisclosed.” Securities and Exchange Commission v. Texas Gulf Sulphur Co., 401 F.2d 833, 848 (2 Cir. 1968), cert. denied, sub nom. Coates v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1968); see also, List v. Fashion Park, Inc., 340 F.2d 457 (2 Cir.), cert. denied, sub nom. List v. Lerner, 382 U.S. 811, 86 S.Ct. 23, 15 L.Ed.2d 60 (1965). The rule applies whether the securities are traded on a public stock exchange or sold through private placement. Moreover, the standard by which the materiality of the information is to be determined is clearly defined. The basic test as it was phrased in List v. Fashion Park, supra at 462, and quoted in SEC v. Texas Gulf Sulphur, supra, 401 F.2d at 849, is “whether a reasonable man would attach importance [to the information] in determining his choice of action in the transaction in question. Restatement, Torts § 538(2) (a); accord Prosser, Torts 554-55; I Harper & James, Torts 565-66.” (Emphasis supplied [in the Texas Gulf Sulphur case]). Moreover, “whether facts are material . . . will depend ,at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.” SEC v. Texas Gulf Sulphur, supra at 849. Those principles were recently reaffirmed by this court in Chasins v. Smith, Barney & Co., 438 F.2d 1167 (2 Cir. 1971). Contrary to RDI’s assertions, those principles were fairly conveyed to the jury in Judge Pollack’s charge. The trial judge stated to the jury, “The essence of Rule 10b-5 is that an insider who has material inside information or a person who has obtained such information from an insider may not thereafter use that material information in connection with the purchase or sale of securities, so as to take advantage of such information knowing it is not available to those with whom he is dealing.” On the matter of what constitutes material information, the" }, { "docid": "2027636", "title": "", "text": "such a statement or omission, the stockholder would have taken a different course. In TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976), the Supreme Court defined the standard of materiality as substantial likelihood that, under all the circumstances, the omitted fact would have assumed actual significance in the deliberations of the reasonable shareholder. Put another way, there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the “total mix” of information made available. Although a judicial review of alleged material misstatements or omissions should not become an exercise in “nit-picking”, Kennecott Copper Corp. v. Curtiss-Wright Corp., 584 F.2d 1195, 1200 (2d Cir.1978), several specifics alleged by plaintiff must be examined. Initially, the Court is satisfied that defendants have adequately disclosed their plans and objectives for Pantry Pride’s future. Plaintiff alleges that defendants have definite plans to, inter alia, sell off supermarkets/real estate, repurchase Devon stock, and place Pantry Pride on the seller’s block. An evaluation of the materiality of the nondisclosure of an anticipated event requires a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in the light of the totality of the company activity. See S.E.C. v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir.1968) (en banc), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969); Securities & Exchange Comm’n v. Parklane Hosiery Co., 422 F.Supp. 477, 485 (S.D.N.Y. 1976), aff'd, 558 F.2d 1083 (2d Cir.1977). After weighing the conflicting assertions, the Court finds that defendants have made ample disclosures by admitting the “possibilities” of plaintiff’s future scenarios. As Judge Friendly noted, to require defendants to “confirm” what are only speculative options would be as egregious as preténding that they did not exist: “It would be as serious an infringement of [SEC regulations] to overstate the definiteness of the plans as to understate them.” Electronic Specialty Co. v. International Controls Corp., 409 F.2d 937, 948 (2d Cir.1969). Similarly, plaintiff’s" }, { "docid": "10437711", "title": "", "text": "the conclusion of an agreement in principle, the Court rejected that approach in favor of the Second Circuit’s view that “materiality ‘will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.’ ” Id. at 238, 108 S.Ct. at 987 (quoting SEC v. Texas Gulf Sulphur Co., 401 F.2d at 849). It turns upon whether “‘the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the “total mix” of information made available.’ ” Basic Inc., 485 U.S. at 231-32, 108 S.Ct. at 983 (quoting TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976)). In light of this standard, both elements of the Basic Inc. test require careful consideration in this ease. The most difficult hurdle for plaintiff is with the likelihood component of the Basic Inc. test. This complaint alleges only that RCP “sought in 1993 to urge Mitsubishi” either to restructure the Loan or to acquire RCP (cpt ¶ 16) (emphasis added), not that it had done so, much less that Mitsubishi had indicated even the slightest interest in either possibility. Basic Inc. indicated that “[wjhether merger discussions in any particular case are material ... depends on the facts.” 485 U.S. at 239, 108 S.Ct. at 987. One must look to “indicia of interest in the transaction at the highest corporate levels” among other factors. Id. And while even tentative discussions of possibly transforming corporate events in some circumstances may be material, the same cannot be said of the unrequited desire of one party to engage in a transaction with another. Panfil v. ACC Corp., 768 F.Supp. 54 (W.D.N.Y.), aff'd, 952 F.2d 394 (2d Cir.1991) (table), is directly in point. The complaint in that case alleged that the defendants had violated the securities laws by failing to disclose that ACC “intended to pursue Rochester Telephone Company to facilitate a combination of these businesses.” Id. at 58. The District" }, { "docid": "22824278", "title": "", "text": "grounds that purchasers could be misled by overly optimistic claims and that soft information was neither reliable nor susceptible to SEC examination. In the late 1970’s, however, SEC policy began to change as the agency recognized that its prohibition effectively kept valuable data from shareholders who were trying to decide whether to sell their securities. Flynn v. Bass Bros. Enterprises, 744 F.2d 978, 985-87 (3d Cir.1984). Today, the SEC encourages the disclosure of management’s projections so long as the projections have a reasonable basis, are presented in an appropriate format, and are accompanied by disclosures that facilitate investor understanding. See 17 C.F.R. § 229.10(b) (1988) (Commission policy on projections). In recent years, the Supreme Court and other courts have adopted a number of approaches for applying the TSC Industries standard in cases involving the nondisclosure of soft information. In Basic Inc. v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), the Supreme Court considered whether the failure to disclose preliminary merger discussions was a material omission. The Court stated that where an “event is contingent or speculative in nature, it is difficult to ascertain whether the ‘reasonable investor’ would have considered the omitted information significant at the time.” Id. at 232, 108 S.Ct. at 983. The Court rejected the approach applied in this circuit under which preliminary merger negotiations were deemed immaterial as a matter of law until an “agreement in principle” as to the price and structure of the transaction had been reached. Id. at 233-34, 108 S.Ct. at 986 (rejecting Greenfield v. Heublein, Inc., 742 F.2d 751 (3d Cir.1984), cert. denied, 469 U.S. 1215, 105 S.Ct. 1189, 84 L.Ed.2d 336 (1985); Staffin v. Greenberg, 672 F.2d 1196 (3d Cir.1982)). According to the Court, the materiality of preliminary merger discussions should depend on the facts and involves the balancing of both the probability that the event will occur and the anticipated magnitude of the event. Id. at 238-39, 108 S.Ct. at 987 (citing SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir. 1968), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d" }, { "docid": "20821827", "title": "", "text": "and Kline v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969), the Second Circuit used several different verbal formulations of materiality. Discussing an “insider’s” obligation to disclose under Rule 10b-5, it indicated that the duty “arises only in ‘those situations which are essentially extraordinary in nature and which are reasonably certain to have a substantial effect on the market price of the security * * *.’ ” SEC v. Texas Gulf Sulphur, supra at 848 (emphasis added). The Court also mentions the tests quoted above from List and Kohler v. Kohler, 319 F.2d 634, 642 (7th Cir. 1963). It shifted from the “would” of List to the standard of “may”: “Thus, material facts include not only information disclosing the earnings and distributions of a company but also those facts which affect the probable future of the company and those which may affect the desire of investors to buy, sell, or hold the company’s securities. “In each ease, then, whether facts are material within Rule 10b-5 when the facts relate to a particular event and are undisclosed by those persons who are knowledgeable thereof will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.” SEC v. Texas Gulf Sulphur, supra, 401 F.2d at 849 (emphasis added). Discussing materiality in the context of Section 14(a) of the Securities Exchange Act of 1934 the Supreme Court utilized an even less stringent test than Texas Gulf, indicating that a “material fact” was one “of such a character that it might have been considered important by a reasonable shareholder who was in the process of deciding how to vote. This requirement [is] that the defect have a significant propensity to affect the voting process * * * ” Mills v. Electric Auto-Lite Company, 396 U.S. 375, 384, 90 S.Ct. 616, 621, 24 L.Ed.2d 593 (1970) (emphasis added in part). The use of “propensity” in the context of a proxy situation is particularly significant to the instant case" }, { "docid": "23629740", "title": "", "text": "proximately caused the plaintiffs damages. Cooke v. Manufactured Homes, Inc., 998 F.2d 1256, 1260-61 (4th Cir.1993). Accord Malone v. Microdyne Corp., 26 F.3d 471, 476 (4th Cir.1994); Myers v. Finkle, 950 F.2d 165, 167 (4th Cir.1991); Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.1991), cert. denied sub nom., Schatz v. Weinberg & Green, — U.S. -, 112 S.Ct. 1475, 117 L.Ed.2d 619 (1992). The critical concern in the case at hand is the first of these factors, which itself has two components: (a) a false statement or omission of a fact (b) that is material. In Basic Inc. v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), the Supreme Court set forth the starting point for any analysis of this factor. There the Court devoted much of its attention to the “materiality requirement” and held that in order “to fulfill the materiality requirement” in the § 10(b) and Rule 10b-5 context “there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.” Id. at 231-32, 108 S.Ct. at 983 (quoting TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976)). Thus, materiality is a “fact-specific inquiry,” which “depends on the significance the reasonable investor would place on the withheld or misrepresented information.” Id. at 240,108 S.Ct. at 988 (footnote omitted). With respect to “contingent or speculative information or events,” materiality “ “will depend ... upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.’ ” Id. at 238, 108 S.Ct. at 987 (quoting SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir.1968) en banc), cert. denied sub nom., Coates v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969)). In the midst of this discussion of the materiality requirement the Court also emphasized that in order to meet its burden under this first" }, { "docid": "19831369", "title": "", "text": "made in plaintiffs’ favor. Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989); Meilke v. Constellation Bancorp, No. 90-3915, 1992 WL 47342, at *1 (S.D.N.Y. Mar. 4, 1992). “The court’s function on a Rule 12(b)(6) motion is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d at 1067 (citation omitted). III. The Standard of Materiality Applicable to Plaintiff’s Section 11 Claim. The question is whether Paramount’s failure to disclose any of the above-described events in the July 12, 1993 registration statement constitutes an omission of material fact in violation of Section 11. Under the securities laws, for an event or fact to be material, “there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.” TSC Indus. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976). In Basic, Inc. v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), the Supreme Court addressed the question of how this standard of materiality applies to preliminary merger negotiations. The Court expressly rejected the view that merger negotiations are immaterial as a matter of law until the parties have reached an agreement-in-prineiple as to price and structure. Id. at 236, 108 S.Ct. at 986. Instead, Basic adopted the standard previously articulated by the Second Circuit in SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir.1968), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969). Under that standard, “materiality “will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of company activity.’” 485 U.S. at 238, 108 S.Ct. at 987. In adopting this test, the Basic Court noted that it is a very fact-specific standard. Id. at 239-40, 108 S.Ct. at 987-88. Even before the Basic decision, the Second" }, { "docid": "10437710", "title": "", "text": "not now the law. RCP was not required to disclose its predictions and speculations, and they were not a material fact disclosure of which was necessary to make the Registration Statement “not misleading.” RCP’s Desire to Explore Restructuring or an Acquisition The complaint fairly alleges that RCP had decided, in view of the mounting deficits and the looming expiration of the letter of credit, to explore restructuring the Loan or an acquisition of RCP by Mitsubishi. The allegation that its failure to disclose that fact violated the securities laws invokes the body of law dealing with the circumstances in which issuers are obliged to disclose future contingencies, particularly possible mergers and acquisitions and other transforming transactions. In Basic Inc. v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), the Supreme Court granted certiorari to resolve, inter alia, a conflict among the circuits as to the standard of materiality applicable to preliminary merger discussions. Although some courts previously had held that preliminary merger discussions are immaterial as a matter of law prior to the conclusion of an agreement in principle, the Court rejected that approach in favor of the Second Circuit’s view that “materiality ‘will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.’ ” Id. at 238, 108 S.Ct. at 987 (quoting SEC v. Texas Gulf Sulphur Co., 401 F.2d at 849). It turns upon whether “‘the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the “total mix” of information made available.’ ” Basic Inc., 485 U.S. at 231-32, 108 S.Ct. at 983 (quoting TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976)). In light of this standard, both elements of the Basic Inc. test require careful consideration in this ease. The most difficult hurdle for plaintiff is with the likelihood component of the Basic Inc. test. This complaint alleges only that RCP “sought" }, { "docid": "22824279", "title": "", "text": "“event is contingent or speculative in nature, it is difficult to ascertain whether the ‘reasonable investor’ would have considered the omitted information significant at the time.” Id. at 232, 108 S.Ct. at 983. The Court rejected the approach applied in this circuit under which preliminary merger negotiations were deemed immaterial as a matter of law until an “agreement in principle” as to the price and structure of the transaction had been reached. Id. at 233-34, 108 S.Ct. at 986 (rejecting Greenfield v. Heublein, Inc., 742 F.2d 751 (3d Cir.1984), cert. denied, 469 U.S. 1215, 105 S.Ct. 1189, 84 L.Ed.2d 336 (1985); Staffin v. Greenberg, 672 F.2d 1196 (3d Cir.1982)). According to the Court, the materiality of preliminary merger discussions should depend on the facts and involves the balancing of both the probability that the event will occur and the anticipated magnitude of the event. Id. at 238-39, 108 S.Ct. at 987 (citing SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir. 1968), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969)). In Flynn v. Bass Bros. Enterprises, 744 F.2d 978 (3d Cir.1984), we considered the materiality of undisclosed asset appraisals in the context of a tender offer. In light of the policy change by the SEC, we held that asset appraisals and other soft information are not immaterial as a matter of law; rather, courts should ascertain the duty to disclose on a case-by-case basis, “weighing the potential aid such information will give a shareholder against the potential harm, such as undue reliance, if the information is released with a proper cautionary note.” Id. at 988. We listed seven factors a court should consider in evaluating the omitted information: 1) the facts upon which the information is based; 2) the qualifications of those who prepared or compiled it; 3) the purpose for which the information was originally intended; 4) its relevance to the stockholders’ impending decision; 5) the degree of subjectivity or bias reflected in its preparation; 6) the degree to which the information is unique; 7) and the availability to the investor of" } ]

[ { "docid": "10938805", "title": "", "text": "Guard member. The article in clear and unambiguous terms prohibits the possession, use, sale, or other transfer of marijuana, narcotic substances, or other controlled substances by persons in the Coast Guard and further implementation by subordinate commanders to give it effect as a code of conduct is not required. The article clearly defines the types of misconduct that could result in punitive action and places all concerned on notice that noncompliance may involve criminal sanctions. Thus, we are satisfied that Article 9-2-15 fulfills the requirements of a lawful general regulation enforceable under Article 92, UCMJ. U. S. v. Benway and U. S. v. McEnany, both supra; U. S. v. Louder, 7 M.J. 548 (A.F.C.M.R.1979) petition for review by U.S.C.M.A. denied 7 M.J. 328. Paragraph 171a, Manual for Courts-martial 1969 (Rev.), provides in part: “General orders or regulations are those orders or regulations generally applicable to an armed force which are properly published by the President or by the Secretary of Defense, of Transportation, or of a military department * * *.” As indicated above, Coast Guard Regulations were promulgated by the Commandant in his own right and under authority delegated by the Secretary of Transportation. The Commandant undoubtedly had authority in either capacity to issue a general order or regulation applicable to all members of the Coast Guard. See U. S. v. Allen, 6 M.J. 633 (C.G.C.M.R.1978); U. S. v. Porter, 11 U.S.C.M.A. 170, 28 C.M.R. 394 (1960); U. S. v. Chunn, 15 U.S.C.M.A. 550, 36 C.M.R. 48 (1965). Coast Guard Regulations appear regular on their face and they are presumed to be lawful. U. S. v. Trani, 1 U.S.C.M.A. 293, 3 C.M.R. 27 (1952); U. S. v. Bayhand, 6 U.S.C.M.A. 762, 21 C.M.R. 84 (1956); U. S. v. Smith, 21 U.S.C.M.A. 231, 45 C.M.R. 5 (1972). There is also a presumption that the Commandant’s actions in promulgating Coast Guard Regulations were performed regularly and legally in compliance with controlling statutory provisions. 29 Am. Jur.2d, Evidence §§ 171, 172; U. S. v. Allen, supra; Johnson v. United States, 225 U.S. 405, 32 S.Ct. 748, 56 L.Ed. 1142 (1911); Sunday Lake" } ]

[ { "docid": "18913448", "title": "", "text": "our present concern. The Commanding Officer also related that the accused had been counseled on numerous occasions by various representatives of the command without noticeable results. The Commanding Officer expressed his conclusion that Seaman Recruit Clevidence’s actions were calculated to impel his separation from the Coast Guard. The Commanding Officer stated that the accused’s behavior was having a detrimental effect on discipline and was creating an administrative burden on the command. Counsel also filed a copy of a message from the Commandant dated 27 March 1979 authorizing Seaman Recruit Clevidence’s separation with a general discharge due to misconduct provided no disciplinary action was pending. The Court of Military Appeals considered a similar claim of inadequacy of a staff judge advocate’s review in U. S. v. Edwards, 23 U.S.C.M.A. 202, 48 C.M.R. 954 (1974). There as in this case the potentially favorable material was related to unfavorable material. The Court of Military Appeals said that if the favorable material should have been brought to the attention of the convening authority as counsel insisted, then clearly the staff judge advocate would have been obliged to mention the unfavorable material. The Court concluded that on balance the staff judge advocate’s omission of the information operated to the accused’s benefit. We reach a similar conclusion in this case. Moreover, the discussion of clemency factors in a legal officer’s review is largely discretionary and it is only when the legal officer abuses his discretion by the omission of significant clemency factors that his posttrial advice becomes inadequate so as to require the preparation of a new review and action. U. S. v. Fields, 9 U.S.C.M.A. 70, 25 C.M.R. 332 (1958); U. S. v. Martin, 9 U.S.C.M.A. 84, 25 C.M.R. 346 (1958); U. S. v. Jemison, 10 U.S.C.M.A. 472, 28 C.M.R. 38 (1959). Clearly, the legal officer did not abuse his discretion in the case by failing to mention the Commandant’s prior conditional authorization for the administrative discharge of Seaman Recruit Clevidence, particularly since that information was before the supervisory authority in a petition for clemency. U. S. v. Jemison, supra; U. S. v. Cash, 14" }, { "docid": "22431434", "title": "", "text": "face alleges a violation of section (1), Article 92, violation of a “lawful . . . regulation.” In discussing this Article, the Manual for Courts-Martial, supra, paragraph 171a, defines a general regulation as follows: ' “A general order or regulation is one which is promulgated by the authority of a Secretary of a Department and which applies generally to an armed force, or one promulgated by a commander which applies generally to his command. See 154a (4) (Ignorance of law) as to the necessity of proving actual - or constructive knowledge of general orders or regulations in certain cases.” Paragraph 154a (4) provides as set out below:. “Also, before a person can properly be held responsible for a violation of any regulation or directive of any command inferior to the Department of the Army, Navy, or Air Force, or the Headquarters of the Marine Corps or Coast Guard, or inferior to the headquarters of a'Territorial, theater, or similar area command (with respect to personnel stationed or having duties within such area), it must appear that he knew of the regulation or directive, either actually or constructively.” [Emphasis supplied] The clear import of the language of this latter paragraph, when viewed in the light of paragraph 171a, and applied to the situation involved in the instant case, is that commands inferior to the Headquarters of the Marine Corps, or theatre and similar areas of command, may issue lawful orders and regulations of general application — that is, general orders and regulations. This interpretation is buttressed by pre-existing law. Article 92(1) represents a consolidation of previous Army and Navy law. Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, page 258; Index and Legislative History, Uniform Code of Military Justice, House Hearings, page 1227. Under the Articles of War and the older dispensation, offenses covered by the present Article 92(1) would have been punished under Article of War 96, 10 USC § 1568, conduct to the prejudice of good order and military discipline. With.the exception of violations of general orders issued by the Secretary of the Navy, offenses under the present" }, { "docid": "12134235", "title": "", "text": "record and transcribe the in-chambers discussion about a defense proposed instruction resulted in a non-verbatim record of trial. Counsel for both sides approached the military judge while in chambers, and defense counsel requested that the judge instruct the members to completely disregard the testimony of several witnesses as to the accused’s uncharged misconduct. The judge indicated that he thought such an instruction was inappropriate, but would instruct that the misconduct could be used only for a limited purpose. During an Article 39a Session, 10 U.S.C. § 839(a) following the military judge’s limiting instruction to the court members, the defense counsel objected to the instruction, claiming that it had served only to highlight the misconduct of the accused. At that time the military judge described for the record what had occurred in his chambers. Trial proceedings begin when the military judge formally calls the court into session. They include all open sessions of court with members, sessions held out of the presence of the members, and sessions in which the trial is conducted by the military judge alone. Manual for Courts-Martial, 1969 (Rev.), paragraph 53d See MCM, 1969 (Rev.), Appendix 8; United States v. Richardson, 21 U.S.C.M.A. 383, 45 C.M.R. 157 (1972). All rulings made or instructions given by the military judge shall be made or given in open session and will be included in a verbatim record of trial, provided a verbatim record is otherwise required. MCM, 1969 (Rev.), para. 82b (1) and 39c; United States v. Gray, 7 M.J. 296 (C.M.A.1979). Informal communications between the military judge and counsel made outside the open sessions of the court are not a part of the trial proceedings. Therefore, discussions of and rulings on matters .affecting the substantial rights of the accused should not be handled informally, MCM, 1969 (Rev.), para. 39c. If discussions of this nature do occur, they should be fully explained on the record so that it can be determined whether the accused was prejudiced thereby. See United States v. Henderson, 11 U.S.C.M.A. 556, 29 C.M.R. 372 (1960); United States v. Adamiak, 4 U.S.C.M.A. 412, 15 C.M.R. 412 (1954);" }, { "docid": "10938802", "title": "", "text": "U.S.C. 631. The Commandant’s letter promulgating Coast Guard Regulations 7 February 1975 provides in part: “1. Purpose. This publication provides general rules concerning matters of major principle relating to the government of the Coast Guard.” * * * * “5. Discussion. In addition to prescribing general rules concerning matters of major principle, these Regulations also include, for the purpose of maintaining standardization of certain procedures and doctrines, rules of lesser importance which are reasonably permanent in nature. * * * ” Part 2 of Chapter 2 of the Regulations is entitled “Compliance and Applicability”. Article 2-2-1 of Part 2 pertaining to Coast Guard Personnel provides: “A. Each officer and enlisted person in the Coast Guard shall acquaint themselves with, comply with, and, only to the extent of their authority, enforce the laws of the United States, executive orders, these regulations, and the rules and instructions issued thereunder.” A regulation may be used as a basis for punishing violators if it is sufficiently definite to give notice of what conduct is necessary to avoid violating it. The fact that the regulation is aimed at more than one objective does not render it unenforceable for punitive sanctions. U. S. v. Benway, 19 U.S.C.M.A. 345, 41 C.M.R. 345 (1970). No single characteristic of a general order or regulation determines whether it applies punitively to members of a command or service. The order in its entirety must demonstrate that rather than providing general guidelines for the conduct of military functions it is basically intended to regulate conduct of individual members and that its direct application of sanctions for its violation is self evident. U. S. v. Hogsett, 8 U.S.C.M.A. 681, 25 C.M.R. 185 (1958); U. S. v. Baker, 18 U.S.C.M.A. 504, 40 C.M.R. 216 (1969); U. S. v. Nardell, 21 U.S.C.M.A. 327, 45 C.M.R. 101 (1972). The Court of Military Appeals has said that if a general order or regulation is to provide a course of conduct for servicemen and a criminal sanction for failure to abide by it the order or regulation should clearly state to whom the provisions are applicable and whether" }, { "docid": "10938806", "title": "", "text": "Guard Regulations were promulgated by the Commandant in his own right and under authority delegated by the Secretary of Transportation. The Commandant undoubtedly had authority in either capacity to issue a general order or regulation applicable to all members of the Coast Guard. See U. S. v. Allen, 6 M.J. 633 (C.G.C.M.R.1978); U. S. v. Porter, 11 U.S.C.M.A. 170, 28 C.M.R. 394 (1960); U. S. v. Chunn, 15 U.S.C.M.A. 550, 36 C.M.R. 48 (1965). Coast Guard Regulations appear regular on their face and they are presumed to be lawful. U. S. v. Trani, 1 U.S.C.M.A. 293, 3 C.M.R. 27 (1952); U. S. v. Bayhand, 6 U.S.C.M.A. 762, 21 C.M.R. 84 (1956); U. S. v. Smith, 21 U.S.C.M.A. 231, 45 C.M.R. 5 (1972). There is also a presumption that the Commandant’s actions in promulgating Coast Guard Regulations were performed regularly and legally in compliance with controlling statutory provisions. 29 Am. Jur.2d, Evidence §§ 171, 172; U. S. v. Allen, supra; Johnson v. United States, 225 U.S. 405, 32 S.Ct. 748, 56 L.Ed. 1142 (1911); Sunday Lake Iron Co. v. Wakefield Tp., 247 U.S. 350, 38 S.Ct. 495, 62 L.Ed. 1154 (1918); U. S. v. Masusock, 1 U.S.C.M.A. 32, 1 C.M.R. 32 (1951); U. S. v. Taylor, 2 U.S.C.M.A. 389, 9 C.M.R. 19 (1953); U. S. v. Shenefield, 18 U.S.C.M.A. 453, 40 C.M.R. 165 (1965). No evidence has been found in the record and none has been brought to our attention indicating either that U.S. Coast Guard Regulations are illegal or that they were not issued in compliance with applicable statutory provisions. Thus, the presumption that they were issued regularly and are lawful has not been overcome. The substance forming the basis of the specification under which the accused was convicted of violating Coast Guard Regulations by the possession, sale, or other transfer of quaaludes never came into government hands. Consequently, there was no report of laboratory analysis or expert testimony identifying the substance. Instead the evidence consisted essentially of the testimony of an AM3 Yeakos. He had become a Coast Guard Intelligence informer and was the government’s principal witness on the" }, { "docid": "1185004", "title": "", "text": "valid rule of trial procedure and mode of proof prescribed under Article 36, Uniform Code of Military Justice, 10 U.S.C. § 836. Similarly, our examination of Fed.R.Evid. 201 does not compel the result reached in either Atherton or Levesque. To the extent that Atherton and Levesque are inconsistent with the views expressed herein, these decisions are not to be followed. COOK, Judge (dissenting): Paragraph 147a, Manual for Courts-Martial, United States, 1969 (Rev.), sets forth the following on the matter of judicial notice: Unless the matter to be judicially noticed is one of universal knowledge or one of common knowledge in the armed forces of the United States or is a judicially noticeable signature, seal, or inked stamp, a party desiring the court to take judicial notice of a matter should ask the court to do so, at the same time presenting for the court’s consideration the source of information upon which he relies with respect to the matter. . If a writing is used by the court in aiding it to take judicial notice of a matter, the record should indicate that the writing was so used, and, unless it is a statute of the United States, an executive order or proclamation of the President of the United States, or an official publication of the Department of Defense, the Departments of the Army, Navy, or Air Force, or the Headquarters of the Marine Corps or Coast Guard, the writing, or pertinent extracts therefrom, should be included in the record of trial as an exhibit. [Emphasis added.] As the present case involves a regulation promulgated by the Department of the Army, the quoted Manual provision would not, by its terms, require a party to request that judicial notice be taken of the regulation. Furthermore, while this Court has held that the better practice is to note specifically that judicial notice has been taken of an item of other forms of evidence, the Court has not required the utterance of the operative verbiage. United States v. Uchihara, 1 U.S.C.M.A. 123, 2 C.M.R. 29 (1952); United States v. McCrary, 1 U.S.C.M.A. 1, 1" }, { "docid": "16008986", "title": "", "text": "293, 27 C.M.R. 366, 367 (1959); United States v. Snyder, 1 U.S.C.M.A. 423, 4 C.M.R. 15 (1952). However, the Government must allege the lawful general regulation which the accused purportedly violated. United States v. Bunch, 3 U.S.C.M.A. 186, 11 C.M.R. 186 (1953). Moreover, the Government must allege and prove the facts constituting the regulatory infraction. United States v. Crooks, 12 U.S.C.M.A. 677, 31 C.M.R. 263 (1962); United States v. Bunch, supra. Finally, depending on the lawful general regulation alleged, the Government must also prove any general or specific intent required by this regulation. United States v. Whyte, 23 U.S.C.M.A. 551, 50 C.M.R. 722 (1975); United States v. Tucker, 17 U.S.C.M.A. 551, 38 C.M.R. 349 (1968); see para. 4-27(c), Military Judges’ Guide, Department of the Army Pamphlet 27-9 (1969). In the present case, appellant was charged with violating paragraph 4-4, Air Force Regulation 30-2 (Nov. 8,1976). Both parties to this appeal agree that this general regulation prohibits the possession of quaalude. Possession in this type of regulatory context has been construed to mean the knowing and intentional possession of drugs. See United States v. Wilson, 7 M.J. 290, 292-93 (C.M.A.1979). Accordingly, the Government in this case was required to prove that appellant knowingly and intentionally possessed quaalude. To meet this burden, the Government introduced the testimony of Heffron. He testified that appellant approached him and asked him for some quaaludes. He further testified that they agreed to a purchase price and at a later date he transferred a bag of what they both believed was quaaludes to appellant. The particular question confronting this Court is whether we may affirm so much of this finding of guilty as finds attempted possession of quaalude in violation of Article 80, UCMJ, 10 U.S.C. § 880; Clinton Cotton Mills v. United States, 164 F.2d 173, 177 (4th Cir.1947). No case has been' brought to our attention in which we have affirmed a finding of attempt where the evidence at this level was found insufficient to support a finding of the consummated offense. Cf. United States v. Patterson, 14 U.S.C.M.A. 441, 34 C.M.R. 221 (1964); United" }, { "docid": "22214571", "title": "", "text": "is set aside. The record of trial is returned to the Judge Advocate General of the Navy for resubmission to the Court of Military Review with directions to issue the orders necessary to effect an- administrative credit of 2 months on the appellant’s adjudged sentence to confinement. . Article 13, Uniform Code of Military Justice, 10 U.S.C. § 813; United States v. Nixon, 21 U.S.C.M.A. 480, 45 C.M.R. 254 (1970). . Upon defense motion, the trial judge had ruled that a portion of appellant’s pretrial confinement was illegal, but incorrectly had held that the 56 days in question were lawful. . United States v. Johnson, 12 U.S.C.M.A. 640, 643, 31 C.M.R. 226, 229 (1962). See United States v. Christensen, 12 U.S.C.M.A. 393, 30 C.M.R. 393 (1961); United States v. Russo, 11 U.S.C.M.A. 352, 29 C.M.R. 168 (1960). . Paragraph 1009.1, Department of the Navy Corrections Manual, SECNAVINST 1640.9 (May 31, 1973). . Id. . Id. This change in good time rate is dictated by paragraph 1009.7, SECNAVINST 1640.9 (June 19, 1972), which provides: When a change in the period of confinement . . . [such as] a decrease in the sentence by reviewing authorities . . . changes the rate of earning good conduct time, the sentence will be recomputed at the new rate. . See United States v. Johnson, supra; Articles 64 and 66, UCMJ, 10 U.S.C. §§ 864 and 866; paragraph 88a, Manual for Courts-Martial, United States, 1969 (Rev.). . See United States v. Christensen, supra at 397, 30 C.M.R. at 397. . 18 U.S.C. § 4161. . 18 U.S.C. § 3568. . As the military has no similar provision despite absence of opportunity for bail, the convicted accused in our system is not entitled by right to credit on his sentence for pretrial confinement. See United States v. Blackwell, 19 U.S.C.M.A. 196, 199 n. 2, 41 C.M.R. 196, 199 (1970). He must, of course, be credited on his ultimate sentence in a rehearing or new trial with time served pursuant to an initial sentence set aside on appellate review, paragraph 89c (8) (a), MCM; North Carolina v." }, { "docid": "12134527", "title": "", "text": "to become a witness against himself-in violation of both Article 31 and the Fifth Amendment. A comparison may be made to the situation that would be present if an accused who had pled not guilty was called to the stand by the Government or by the military judge and asked, over defense objection, whether he had consented to a search wherein incriminating evidence was found. The fact that consent was given is neutral and has no tendency to show that the accused was guilty of any offense. The consent is not a “statement” concerning the offense. Cf. United States v. Insani, 10 U.S.C.M.A. 519, 28 C.M.R. 85 (1959); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Indeed, an innocent person might be more willing than a guilty one to consent to a search of his belongings. Nonetheless, I do not consider that it would be permissible under such circumstances for the prosecution or military judge to call the accused as a witness to testify that he had given consent for a search. The Fifth Amendment shields a suspect or an accused from the dilemma of choosing between testifying falsely and injuring his own cause. That shield can be waived by a plea of guilty-and perhaps sometimes by a failure to object. However, if there is a plea of not guilty and suitable defense objection, an accused is entitled to remain mute about any matter pertinent to the determination of guilt or to his sentence. Because the principal opinion may be construed to establish a different principle with respect to records of non judicial punishment and conviction by summary court-martial when offered for sentence purposes, I am impelled to write this separate opinion. . The Manual for Courts-Martial confers upon an accused certain rights in connection with presentencing mitigation and extenuation evidence for sentencing purposes. See paras. 53h and 75c, Manual for Courts-Martial, United States, 1969 (Revised edition). In this portion of the trial, an accused may make either a sworn or an unsworn statement or may remain silent. However, these Manual provisions do not appear" }, { "docid": "22309161", "title": "", "text": "the decisions of the Courts of Military Review and their predecessors, the Boards of Review. The genesis case in this area is United States v. Allen, 21 C.M.R. 609 (C.G.B.R.1956). In that case the prosecutor had introduced “in aggravation” of the sentence evidence of a prior conviction which was not yet final. Quoting from this Court’s opinions in United States v. Yerger, 1 U.S.C.M.A. 288, 3 C.M.R. 22 (1952), and United States v. Richard, 7 U.S.C.M.A. 46, 21 C.M.R. 172 (1956), the Coast Guard Board of Review noted the rule “ ‘that evidence of other misconduct is generally not admissible against an accused.’ ” Then, turning to paragraphs 75b(3) and 70a of the Manual for Courts-Martial, United States, 1951,[ ] as the provisions specifically “furnishpng] the license for the introduction of matter in aggravation,” the Board said: We note that the above provisions permit the trial counsel to present matters in aggravation after the findings only in guilty plea cases. In a not guilty plea case, the law is well-settled that the prosecution is restricted after the findings to introducing evidence of previous convictions and to rebutting matters in mitigation introduced by the accused. See cases infra [Yerger and Richard] and par. 75d MCM. United States v. Allen, supra at 612. While this language broadly interprets paragraphs 755(3) and 70a to exclude all aggravating evidence in presentence proceedings in a contested case, on its facts the board’s ruling might be more narrowly construed to exclude any purportedly “aggravating” evidence which does not directly concern the specific offense of which an accused is convicted. Indeed, the board’s reference to the Yerger and Richard cases supports this more narrow view since both of those cases involved evidence of uncharged misconduct not relating to the offenses then on trial. However, in United States v. White, 4 M.J. 628 (A.F.C.M.R.1977), aff’d on other grounds, 6 M.J. 12 (C.M.A.1978), the Air Force Court of Military Review adopted a broad reading of paragraph 75b(3). In a contested case wherein the aggravating evidence directly related to the subject offense at trial, the appellate court found error in" }, { "docid": "22431433", "title": "", "text": "Max (n) Snyder, U.S. Marine Corps Reserve, Second Armored Amphibian Battalion, Force Troops, Fleet Marine Force, Atlantic, Camp Lejeune, North Carolina, on active duty, did, on or about June 23, 1951, violate a lawful regulation, to wit, Chapter 16-1, I Camp Regulations dated 12 July, 1949, ‘Civilians will not be permitted to enter any barracks or building except when authorized to do so by a commissioned or warrant officer assigned to duty with an organization occupying the barracks. Female civilians will not be permitted to enter the barracks or parts of camp occupied by troops as living quarters. Civilian employees who have official business in quarters or other buildings shall be provided with a work order or special pass to authorize entry into such quarters or buildings. Occupants of quarters may require that this work order or pass be exhibited before allowing entry into quarters,’ in that he did permit one Gertrude Williams to enter building number BB-12 and that he did accompany said Gertrude Williams into said building number BB-12.” The specification on its face alleges a violation of section (1), Article 92, violation of a “lawful . . . regulation.” In discussing this Article, the Manual for Courts-Martial, supra, paragraph 171a, defines a general regulation as follows: ' “A general order or regulation is one which is promulgated by the authority of a Secretary of a Department and which applies generally to an armed force, or one promulgated by a commander which applies generally to his command. See 154a (4) (Ignorance of law) as to the necessity of proving actual - or constructive knowledge of general orders or regulations in certain cases.” Paragraph 154a (4) provides as set out below:. “Also, before a person can properly be held responsible for a violation of any regulation or directive of any command inferior to the Department of the Army, Navy, or Air Force, or the Headquarters of the Marine Corps or Coast Guard, or inferior to the headquarters of a'Territorial, theater, or similar area command (with respect to personnel stationed or having duties within such area), it must appear that" }, { "docid": "8303652", "title": "", "text": "the accused’s supervisor, who testified that the accused told him that if he found out who informed on him, he would “get a contract on them”. Sergeant Naylor also testified that the accused said he had been given a copy of a test prior to his taking it. Defense counsel objected to the entire line of testimony. In his review, the staff judge advocate related Sergeant Naylor’s testimony as part of the evidence introduced after findings and opined that it was properly admitted for the purpose of assisting the court in determining an appropriate sentence. The reviewer gave no other specific instructions limiting the use which the convening authority could give to this evidence. The rules limiting the use of uncharged misconduct apply most strictly when it is offered before findings. See Manual for Courts-Martial, 1969 (Rev.), paragraphs 138g, 138f(2). However, where, as here, the sole purpose of the offer of such evidence is to aid in the determination of an appropriate sentence and is in rebuttal to defense evidence offered in mitigation and extenuation, the rules are relaxed. United States v. Plante, 13 U.S.C.M.A. 266, 32 C.M.R. 266 (1962); United States v. Blau, 5 U.S.C.M.A. 232, 17 C.M.R. 232 (1954); Manual, supra, paragraph 75e(4). For, otherwise, “an accused would occupy the unique position of being able to ‘parade a series of partisan witnesses before the court’—testifying at length concerning specific acts of exemplary conduct by him— without the slightest apprehension of contradiction or refutation by the opposition, fullhanded with proof of a contrary import although the prosecution might be.” United States v. Blau, supra, at 244; see also, United States v. Worley, 19 U.S.C.M.A. 444, 42 C.M.R. 46 (1970); United States v. Jeffries, 47 C.M.R. 699 (A.F.C.M.R.1973). Applying these principles to the case at hand, we hold that the evidence was properly before the military judge in aid of determining the appropriate sentence, and, hence, properly before the convening authority for the same purpose. The remaining question is whether the convening authority should have been advised as to the limited usage which he should give to this testimony. In" }, { "docid": "1185005", "title": "", "text": "a matter, the record should indicate that the writing was so used, and, unless it is a statute of the United States, an executive order or proclamation of the President of the United States, or an official publication of the Department of Defense, the Departments of the Army, Navy, or Air Force, or the Headquarters of the Marine Corps or Coast Guard, the writing, or pertinent extracts therefrom, should be included in the record of trial as an exhibit. [Emphasis added.] As the present case involves a regulation promulgated by the Department of the Army, the quoted Manual provision would not, by its terms, require a party to request that judicial notice be taken of the regulation. Furthermore, while this Court has held that the better practice is to note specifically that judicial notice has been taken of an item of other forms of evidence, the Court has not required the utterance of the operative verbiage. United States v. Uchihara, 1 U.S.C.M.A. 123, 2 C.M.R. 29 (1952); United States v. McCrary, 1 U.S.C.M.A. 1, 1 C.M.R. 1 (1951). See United States v. Culp, 14 U.S.C.M.A. 199, 33 C.M.R. 411 (1963), where this Court took judicial notice of the training of officers. See generally United States v. Johnson, 7 U.S.C.M.A. 488, 22 C.M.R. 278 (1957); United States v. Weiman, 3 U.S.C.M.A. 216, 11 C.M.R. 216 (1953). However, relying on Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961), the majority conclude that an appellate court can never assume a military judge, sub silentio, considered the existence of a regulation. I do not read Garner as restrictively as the majority. To support the defendant’s conviction, the Government argued in Garner that the High Court should assume the trial judge judicially noted various sociological factors existing in the South which would give rise to the inference that the black defendants’ attempt to obtain service at a lunch counter reserved solely for whites would disturb the peace. The argument was rejected because to assume judicial notice of such factors had been taken would not only result in depriving the defendants" }, { "docid": "10938807", "title": "", "text": "Iron Co. v. Wakefield Tp., 247 U.S. 350, 38 S.Ct. 495, 62 L.Ed. 1154 (1918); U. S. v. Masusock, 1 U.S.C.M.A. 32, 1 C.M.R. 32 (1951); U. S. v. Taylor, 2 U.S.C.M.A. 389, 9 C.M.R. 19 (1953); U. S. v. Shenefield, 18 U.S.C.M.A. 453, 40 C.M.R. 165 (1965). No evidence has been found in the record and none has been brought to our attention indicating either that U.S. Coast Guard Regulations are illegal or that they were not issued in compliance with applicable statutory provisions. Thus, the presumption that they were issued regularly and are lawful has not been overcome. The substance forming the basis of the specification under which the accused was convicted of violating Coast Guard Regulations by the possession, sale, or other transfer of quaaludes never came into government hands. Consequently, there was no report of laboratory analysis or expert testimony identifying the substance. Instead the evidence consisted essentially of the testimony of an AM3 Yeakos. He had become a Coast Guard Intelligence informer and was the government’s principal witness on the quaalude offense. According to Yeakos, he was not a drug user, had not used cocaine or quaaludes, but had tried marijuana. AM3 Yeakos testified that in mid-February 1979 he was with AD3 Kennedy and AD3 Pratt in front of the paint shop at the Coast Guard Air Station Miami. He saw Pratt give Kennedy $40.00 in exchange for a small plastic bag of pills. Contemporaneous with the delivery of the bag of pills to Pratt, Kennedy said that they were “good ludes”. Shortly thereafter at Yeakos’ desk in the tool crib, Pratt broke up two of the pills and put them in a cup with Coca-Cola. He asked Yeakos if he wanted some of the mixture. When Yeakos asked what, Pratt replied “ludes and soda.” AD3 Kennedy offered to get AM3 Yeakos anything he needed mentioning specifically grass, cocaine and quaaludes. On one occasion Kennedy offered to sell Yeakos 100 quaaludes for $1.95 each. On 2 March 1979 Yeakos did make a controlled buy of cocaine from Kennedy on behalf of Coast Guard Intelligence. On" }, { "docid": "23445947", "title": "", "text": "Base, South Carolina, the organization was a “private commercial business” that was not subject to “control [or] supervision” of the base commander, and it lacked “even the customary informal contacts which credit unions serving military installations usually have.” Additionally, the judge found that another serviceman, whose signature was allegedly forged by the accused to a document attesting that the accused was “a good risk,” was not a victim of the accused’s misconduct because the furnishing of such an attestation to an inquiring creditor was prohibited by Air Force Regulation 31-6, Table 1, Rule 15, and Note 4, dated 28 April 1974. The judge further determined that the accused’s membership in the military was not the “moving force” in the commission of the offenses. On the findings, Judge Herron granted the motion to dismiss the charges. Thereupon, trial counsel applied to the convening authority to review the ruling under the provisions of Article 62(a), UCMJ, 10 U.S.C. § 862(a). While the matter was before the convening authority, the petitioner applied to this Court for writ of prohibition to prevent the convening authority from considering Judge Herron’s decision. We denied the application. Four days later, the convening authority returned the record of the proceedings and the charges to Judge Herron, noting he had “carefully considered” the respective positions of the Government and the petitioner and that he “disagreed with your ruling.” On July 17, 1975, the court-martial was reconvened, with Judge Herron sitting at the accused’s request, without court members. See Article 16(2)(C), UCMJ, 10 U.S.C. § 816(2)(C). Consistent with the construction then accorded Article 62, but which has since been overturned, Judge Herron deemed himself bound to accede to the convening authority’s decision. See Manual for Courts-Martial, United States, 1969 (Rev.), paragraph 67f; United States v. Frazier, 21 U.S.C.M.A. 444, 45 C.M.R. 218 (1972); Lowe v. Laird, 18 U.S.C.M.A. 131, 39 C.M.R. 131 (1969). As there was ample evidence to support his findings of fact, those findings could not, even under the practice then in effect, be reexamined by the convening authority. United States v. Boehm, 17 U.S.C.M.A. 530, 38 C.M.R." }, { "docid": "16008985", "title": "", "text": "was based on his prior experiences with this drug. Cf. United States v. White, 9 M.J. 168, 170 (C.M.A. 1980); United States v. Weinstein, 19 U.S. C.M.A. 29, 41 C.M.R. 29 (1969). As indicated earlier, the admissible testimony of Heffron as to his personal knowledge of the identity of the drug was also deficient. Accordingly, we must conclude that the military judge could have been measurably affected by admission of this inadmissible hearsay testimony, United States v. Watson, supra; United States v. Pavoni, 5 U.S. C.M.A. 591, 18 C.M.R. 215 (1955). This finding of guilty to a violation of a lawful general regulation cannot stand. A question remains whether the entire finding of guilty is affected by this error. Article 59(b). Appellant was charged with violating a lawful general regulation. Article 92(1), UCMJ, 10 U.S.C. 892(1). It has long been established that the Government need not allege or prove that an accused had knowledge of the particular regulation violated to secure a valid conviction under this codal article. United States v. Tinker, 10 U.S.C.M.A. 292, 293, 27 C.M.R. 366, 367 (1959); United States v. Snyder, 1 U.S.C.M.A. 423, 4 C.M.R. 15 (1952). However, the Government must allege the lawful general regulation which the accused purportedly violated. United States v. Bunch, 3 U.S.C.M.A. 186, 11 C.M.R. 186 (1953). Moreover, the Government must allege and prove the facts constituting the regulatory infraction. United States v. Crooks, 12 U.S.C.M.A. 677, 31 C.M.R. 263 (1962); United States v. Bunch, supra. Finally, depending on the lawful general regulation alleged, the Government must also prove any general or specific intent required by this regulation. United States v. Whyte, 23 U.S.C.M.A. 551, 50 C.M.R. 722 (1975); United States v. Tucker, 17 U.S.C.M.A. 551, 38 C.M.R. 349 (1968); see para. 4-27(c), Military Judges’ Guide, Department of the Army Pamphlet 27-9 (1969). In the present case, appellant was charged with violating paragraph 4-4, Air Force Regulation 30-2 (Nov. 8,1976). Both parties to this appeal agree that this general regulation prohibits the possession of quaalude. Possession in this type of regulatory context has been construed to mean the knowing and" }, { "docid": "10938803", "title": "", "text": "The fact that the regulation is aimed at more than one objective does not render it unenforceable for punitive sanctions. U. S. v. Benway, 19 U.S.C.M.A. 345, 41 C.M.R. 345 (1970). No single characteristic of a general order or regulation determines whether it applies punitively to members of a command or service. The order in its entirety must demonstrate that rather than providing general guidelines for the conduct of military functions it is basically intended to regulate conduct of individual members and that its direct application of sanctions for its violation is self evident. U. S. v. Hogsett, 8 U.S.C.M.A. 681, 25 C.M.R. 185 (1958); U. S. v. Baker, 18 U.S.C.M.A. 504, 40 C.M.R. 216 (1969); U. S. v. Nardell, 21 U.S.C.M.A. 327, 45 C.M.R. 101 (1972). The Court of Military Appeals has said that if a general order or regulation is to provide a course of conduct for servicemen and a criminal sanction for failure to abide by it the order or regulation should clearly state to whom the provisions are applicable and whether or not further implementation is required as a condition to its effectiveness as a criminal law. U. S. v. Scott, 22 U.S.C.M.A. 25, 46 C.M.R. 25 (1972). But failure of the order or regulation to warn explicitly that its violation may subject the violator to criminal sanctions will not foreclose prosecution under Article 92, U.C.M.J., if the prohibited conduct is described clearly and reasonable persons would have no difficulty in understanding what could not be done. U. S. v. Curtin, 9 U.S.C.M.A. 427, 26 C.M.R. 207 (1958); U. S. v. McEnany, 19 U.S.C.M.A. 556, 42 C.M.R. 158 (1970). Neither the letter promulgating Coast Guard Regulations, introductory portions of the regulations nor individual articles of the regulations contain language indicating that the regulations are punitive. However, Article 2-2-1 quoted above commands that each member of the Coast Guard become acquainted with and comply with the regulations. Chapter 9 of the regulations is entitled “Regulations and Instructions of General Application” and it is clear from the language of article 9-2-15 that it applies to the individual Coast" }, { "docid": "16333458", "title": "", "text": "to the court members for their consideration in determining an appropriate sentence. See para. 75, Manual for Courts-Martial, United States, 1951. An accused’s personnel records could only be introduced in evidence if they were offered by the defense in extenuation or mitigation, see para. 75c, 1951 Manual, supra, or if, after the defense had offered evidence in extenuation or mitigation, the records were offered by the prosecution in rebuttal. See para. 75d, 1951 Manual, supra. Thus, derogatory information contained in an accused’s personnel records, such as records of nonjudicial punishment, would not come to the attention of the court members, unless the accused offered evidence in extenuation or mitigation to which the prosecution then offered the personnel records in rebuttal. The process was expanded substantially by the 1969 Manual: Now, the prosecution could, under regulations of the service Secretary concerned, introduce “any personnel records of the accused or copies or summaries thereof” whenever a military judge was detailed. MCM, 1969, para. 75d. This was so even though the defense did not first offer matters in extenuation and mitigation. The defense could rebut any such prosecution data. MCM, 1969, para. 75e. Government presentation of personnel records, coupled with possible defense rebuttal, was something new in military justice. It expanded the traditional components of a presentencing hearing (service data, prior convictions, aggravation, extenuation and mitigation, and prosecution rebuttal). The drafters evidently felt such additional “whole man concept” data would be helpful in adjudging an appropriate sentence. See United States v. Morgan, supra, at 131 and 138; United States v. Oakes, 3 MJ. 1053, 1055 (A.F.C.M.R.1977). See generally United States v. Montgomery, 20 U.S.C.M.A. 35,42 C.M.R. 227 (1970); United States v. Johnson, 19 U.S.C.M.A. 464, 42 C.M.R. 66 (1970); United States v. Menchaca, 47 C.M.R. 709 (A.F.C.M.R.1973). The changed emphasis between the various versions of the Manual for Courts-Mar tial is illustrated by the Analysis of Contents, Manual for Courts-Martial, United States, 1969, Revised Edition, DA Pam 27-2, July 1970; concerning paragraph 75d, that document explains: This is a new paragraph which broadens the information to be considered by the sentencing agency in" }, { "docid": "12120637", "title": "", "text": "the act committed by the accused was itself an offense and therefore unlawful and wrongful. United States v. Bunch, 3 U.S.C.M.A. 186, 11 C.M.R. 186 (1953); see also United States v. Irwin, 22 U.S.C.M.A. 168, 46 C.M.R. 168 (1973). We therefore hold that the specifications of Charge I state offenses and that the accused’s pleas of guilty were provident. In their other assignment of error appellate defense counsel assert that the military judge erred in admitting the testimony of the accused’s supervisor as to his duty performance and rehabilitation potential since the testimony was not proper rebuttal to defense evidence. We agree. After the findings of guilty, the trial counsel entered the data from the first page of the charge sheet, evidence of a prior Article 15 and the accused’s performance reports. He then announced that he intended to call one witness. The defense counsel objected “since the defense does not intend to raise the duty performance of the accused as even an issue, in mitigation or extenuation....” The military judge overruled the objection, stating: In that sentencing portion of a case is for all intents and purposes presentencing investigation conducted by the Federal Court System, perhaps even more so in a guilty plea where matters are not fully litigated before the court, I will allow the prosecution to present matters by calling a witness for the limited purpose of establishing factors that should be considered in the sentence. Prior to sentencing, the trial counsel may present to the court or military judge the personnel records of the accused reflecting his past conduct or performance. These records include only those which are maintained by the base personnel officer in accordance with Air Force regulations or directives. Air Force Manual 111-1, Military Justice Guide, para. 5-13, IMC 79-1, 5 March 1979. However, there is no authority to call witnesses to testify against the accused who pleaded guilty in the absence of evidence in mitigation and extenuation of the offenses of which he has been convicted or was otherwise relevant to the offenses charged. Here, the witness testified before the accused was" }, { "docid": "18913437", "title": "", "text": "three months and to be discharged from the service with a bad conduct discharge. This sentence was approved by the convening authority and by the officer exercising general court-martial jurisdiction. Appellate defense counsel has asked us to disapprove the sentence to a bad conduct discharge because the accused was denied his right to a speedy review of his case; because the legal officer’s review was inadequate; and, because a sentence to bad conduct discharge is inappropriate for Seaman Recruit Clevidence. During our examination of the record, we also noted with respect to the legal officer’s review that it was signed by a law specialist other than the district legal officer who had not been designated in writing for the purpose as required by Section 0510-1 of the Coast Guard Military Justice Manual, CG-488. Article 65(b), UCMJ, 10 U.S.C. § 865(b), incorporating some of the requirements of Article 61, 10 U.S.C. § 861, provides that the record of a trial by special court-martial in which a sentence including a bad conduct discharge has been approved by the convening authority shall be sent to the officer exercising general court-martial jurisdiction over the command for review. Before acting on the record, the officer exercising general court-martial jurisdiction shall refer the record to his staff judge advocate or legal officer who shall submit his written opinion thereon. See also paragraph 85, Manual for Courts-Martial, 1969 (Rev.). The words “his staff judge advocate or legal officer” have been interpreted to mean the senior judge advocate or legal officer of the command. See U. S. v. Schuller, 5 U.S.C.M.A. 101, 17 C.M.R. 101 (1954); U. S. v. Callahan, 10 U.S.C.M.A. 156, 27 C.M.R. 230 (1959); U. S. v. Kema, 10 U.S.C.M.A. 272, 27 C.M.R. 346 (1959); Section 510-1, Coast Guard Military Justice Manual, supra. Alternatives must be available if the senior judge advocate or legal officer is absent or becomes disqualified. If more than one judge advocate or legal officer is assigned to the command the next senior may act in the absence of the staff judge advocate or legal officer. Additionally, for Coast Guard commands" } ]

[ { "docid": "21190195", "title": "", "text": "has conceded that there was compliance with the Act only after this suit was instituted. Under these circumstances a nice question is presented as to the propriety of granting injunctive relief. However, it is one which we do not decide for we think that it is a matter properly addressed in the first instance to the discretion of the trial judge, who had no occasion to rule on this issue when judgment was entered below. Mitchell v. Lublin, McGaughy & Associates, 358 U.S. 207, 213-215, 79 S.Ct. 260, 3 L.Ed.2d 243 (1959). See Goldberg v. Thompson, 287 F.2d 421 (5 Cir. 1961); Mitchell v. Hodges Contracting Co., 238 F.2d 380, 381 (5 Cir. 1956). Cf. Mitchell v. Pidcock, 299 F.2d 281 (5 Cir. 1962). The judgment will be reversed and the case remanded for proceedings not inconsistent with this opinion. . Section 6, as amended, 29 U.S.C.A. § 206 (Supp.1961) (wages); Section 7, as amended, 29 U.S.C.A. § 207 (Supp.1961) (hours); Section 11(c), 29 U.S.C.A. § 211(c) (records). The 1961 amendments to Sections 6 and 7 are not effective in this action. . As amended, 29 U.S.C.A. § 213(a) (2) (Supp.1961). The retail and service exemption allegedly applicable in this case has been narrowed by the 1961 amendments to the Act. As operative here the subsection states that “the provisions of sections 6 and 7 shall not apply with respect to * * * (2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located. A ‘retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry”. 52 Stat. 1067 (1938), as amended, 63 Stat. 917 (1949). . The Secretary argues on appeal that Furman’s business is one which is outside the “retail concept” and thus not permitted to claim the exemption allowed" } ]

[ { "docid": "5363971", "title": "", "text": "coverage and narrow exemptions, we find the Ben Franklin Reading Club beyond the pale of either the retail establishment or the outside salesman exemption. The judgment of the district court is Affirmed. . 29 U.S.C.A. § 213(a) (2): The provisions of sections 206 and 207 of this title shall not apply with respect to — any employee employed by any retail or service establishment (except an establishment or employee engaged in laundering, cleaning, or repairing clothing or fabrics or an establishment engaged in the operation of a hospital, institution, or school described in section 203(s) (4) of this title), if more than 50 per centum of such establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located, and such establishment is not in an enterprise described in section 203 (s) of this title or such establishment has an annual dollar volume of sales which is less than $250,-000 (exclusive of excise taxes at the retail level which are separately stated). A “retail or service establishment” shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry; * *. . 29 U.S.C.A. § 213(a) (1): The provisions of sections 206 and 207 of this title shall not apply with respect to — any employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools), or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulation of the Secretary, subject to the provisions of the Administrative Procedure Act, except that an employee of a retail or service establishment shall not be excluded from the definition of employee employed in a bona fide executive or administrative capacity because of the number of hours in his workweek which he devotes to activities not directly or closely related to the performance" }, { "docid": "19178959", "title": "", "text": "and one-half times the minimum hourly rate applicable to him under section 206 of this title, and (2) more than half his compensation for a representative period (not less than one month) represents commissions on goods or services.... 29 U.S.C. § 207(i). There is no dispute regarding two of the requirements for the exemption. Defendants maintain, and Gatto does not dispute, that Gatto’s regular rate of pay was in excess of one and one-half times the minimum hourly rate applicable to her under 29 U.S.C. § 206. (Defs.’ Mem. at 6- 7.) Nor does Gatto dispute that more than half of her pay represented commissions on goods or services. The parties do, however, dispute whether Gatto was employed by a “retail or service establishment.” Citing Mitchell v. Kentucky Finance Co., 359 U.S. 290, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959), Gatto contends that MSI cannot be a “retail or service establishment” because it is in the “financial industry.” (Pl.’s Resp. at 3.) For the following reasons, the court concludes that MSI is a “retail or service establishment” under § 207(i), and that the exemption defeats Gatto’s claim for overtime compensation. 1. The Term “Retail or Service Establishment” Gatto’s argument relies on the Supreme Court’s interpretation of the FLSA in Mitchell. However, the FLSA as it currently exists is different from that considered by the Court in Mitchell in 1959. The FLSA then contained a definition of “retail or service establishment,” but the current version of the FLSA does not. In 1949, the FLSA had been amended to include a definition of “retail or service establishment” in 29 U.S.C. § 213(a)(2): “an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry....” Mitchell, 359 U.S. at 291, 79 S.Ct. 756. The issue in Mitchell was whether a business that made personal loans to individuals and purchased conditional sales contracts from furniture and appliance dealers met that definition. Id. at 290, 292, 79 S.Ct. 756. The Court looked" }, { "docid": "1495632", "title": "", "text": "S.Ct. 166, 93 L.Ed. 415 (1948). . In its present form, 29 U.S.C. § 213(a) (2) reads in pertinent part as follows: “(a) The provisions of sections 206 [minimum wage] and 207 [maximum hours] of this title shall not apply with respect to— * * * * * (2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located, if such establishment— (i) is not in an enterprise described in section 203 (s) of this title, or * * * Hi * (iv) is in such an enterprise and has an annual dollar volume of sales * * * which is less than $250,000. A ‘retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry; * * * *» No contention has been made that appellant qualifies for enterprise coverage. . We regard Hooper as strikingly similar factually to our present case. The district court’s holding in Hooper that there were two separate establishments was reversed on appeal, . It should be noted that plaintiffs do not contest the court’s finding that they were not covered during any portion of the suit period by virtue of work performed for defendant. . The rationale for shifting the burden of proving the employee’s engagement in commerce is the same as that commonly stated for shifting the burden of proving the extent and amount of uncompensated work performed by the employee: The employer is the party who has the duty under 29 U.S.C. § 211(c) to maintain employment records, and it is peculiarly in the position to furnish the most probative facts regarding the interstate commerce connections of its business and its employees. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-688, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946)." }, { "docid": "14003504", "title": "", "text": "accountant about possible liability under the wage and hour laws. The accountant, Tom Copeland, called John Simmons, the area representative of the Wage and Hour Division of the Department of Labor, who told him that a 16-year-old could be employed for this type of work and that Gateway was exempted from all provisions of the law because of its low dollar volume of business. From time to time Yates also employed his brother, Tyler, and one Larry McCollum, who was married to Yates’ niece and was a full-time student at the University of Tennessee while he was working at the station. Yates supplied McCollum with additional money for tuition and for books. Gateway paid its employees wages ranging from $10 to $15 per 12-hour shift and most of the employees worked in excess of 40 hours a week without receiving additional overtime compensation. In 1974, the Secretary brought an action under Section 17 of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (1970), to enjoin Yates from violating the record keeping, minimum wage, and overtime provisions and to restrain the continued withholding of wages alleged to be due under the Act. Following a non-jury trial, the district court held that the defendant had carried a “bare burden” of demonstrating that the station came within the Section 13(a)(2) exemption for certain retail or service establishments. The Secretary appeals from that judgment and Yates cross appeals from rulings of the district court which excluded the testimony of several witnesses. As sympathetic as we are to Mr. Yates’ claim that the Secretary’s decision to enforce the Act against him is nothing more than bureaucratic overkill, we are nevertheless obliged to reverse the judgment of the district court in obedience to the language of the Act as construed by the United States Supreme Court in Idaho Metal Works v. Wirtz, 383 U.S. 190, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966), and out of respect for the discretion possessed by the Secretary of Labor to interpret and administer the Act. The minimum wage and maximum hour provisions of" }, { "docid": "10638676", "title": "", "text": "SIDNEY 0. SMITH, Jr., District Judge. This is an action brought by the Secretary of Labor to enjoin the defendant from violating the minimum wage, overtime, and recordkeeping provisions of the Fair Labor Standards Act. While stipulating that it has employees engaged in commerce or in the production of goods for commerce and that the annual gross volume of sales of defendant enterprise is not less than $1,000,000, the defendant denies that it is subject to the provisions of the Act. (1) In this connection, it contends it is exempt from both minimum wage and overtime provisions by virtue of 29 U.S. C.A. § 213(a) (2), which provides an exemption with respect to: “[A]ny -employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located, if such establishment * * (ii) is in such an enterprise and is a hotel, motel, restaurant, or motion picture theater; * * *. “A ‘retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recog nized as retail sales, in the particular industry;” (Emphasis supplied) and by virtue of 29 U.S.C.A. § 213(a) (20), which provides such an exemption with respect to: “[A]ny employee of a retail or service establishment who is employed primarily in connection with the preparation or offering of food or beverages for human consumption, either on the premises, or by such services as catering, banquet, box lunch, or curb or counter service, to the public, to employees, or to members or guests of members of clubs.” (2) Defendant further contends that it is exempt from the current overtime provisions by virtue of 29 U.S.C.A. § 213(b) (8) which provides an exemption therefrom with respect to: “any employee employed by an establishment which is a hotel, motel, or restaurant,” and by virtue of 29 U.S.C.A. § 213(b) (18) which provides an exemption therefrom with respect" }, { "docid": "5363946", "title": "", "text": "point, however, we do not rely, as did the district court, on the absence of a retail concept in the magazine industry, a finding on which we express no opinion. Instead, we base our decision on the narrower ground that appellant does not maintain in his business the kind of “establishment” which Congress exempted under the Act. “Defendant’s sales are not recognized as retail sales in the particular industry, for there is no concept of retail selling or servicing in the magazine industry. [Citing Idaho Sheet Metal Works v. Wirtz, 1966, 383 U.S. 190, 86 S.Ct. 737, 745, 15 L.Ed.2d 694], In so holding, the Court deems these ‘student salesmen’ for magazine subscription services to be analogous to newspaper boys and there is no concept of retail selling or servicing in the newspaper industry. [Citing Idaho Sheet Metal Works v. Wirtz, supra; Mitchell v. Kentucky Finance Co., 1959, 359 U.S. 290, 79 S.Ct. 756, 759, 3 L.Ed.2d 815]. Where Congress intended that this type of business have an exemption, one is specifically provided by the law. See, for example, 29 U.S.C. § 213(d).” 282 F.Supp. 871, 875 (S.D.Fla.1968). I. We direct our attention first to the “retail establishment” exemption of § 13(a) (2). In its present form § 13 (a) (2) reads in pertinent part as follows: “The provisions of sections 206 [minimum wage] and 207 [maximum hours] of this title shall not apply with respect to * * * any employee employed by any retail or service establishment * * * if more than 50 per cent of such establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located, and such establishment is not in an enterprise described in section 203(s) of this title or such establishment has an annual dollar volume of sales which is less than $250,000. * * * A ‘retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales" }, { "docid": "22036554", "title": "", "text": "public agencies, and pointed out other facts directed at showing nonexemption under the guidelines. Despite this evidence, there is unclarity as to the precise percentages of dollar volume attributable to the various sales that the guidelines label nonretail. However, the burden of proof respecting exemptions is upon the company, as earlier indicated, and since we uphold the Secretary’s test, that burden has not been met. If Steepleton had alleged on appeal that it could meet the Secretary’s standards if they prevailed, even then we would hesitate to order a remand since the Secretary’s position has been known from the outset. In all events, Steepleton has not even claimed in this Court that the Secretary’s standards could be met. The judgment of the Court of Appeals in No. 30 is affirmed; the judgment of the Court of Appeals in No. 31 is reversed. It ⅛ so ordered. 52 Stat. 1060, as amended, 29 U. S. C. §§201-219 (1964 ed.). Sections 6-7, codified as §§ 206-207, respectively cover minimum wages and overtime pay. The commerce coverage of the Act, through a special definition of “production,” is drawn in generous terms. See §3 (j), codified as §203 (j). 52 Stat. 1067, as amended, 29 U. S. C. §213 (a)(2) (1964 ed.). The section provides that the minimum wage and overtime pay provisions of the Act shall not apply to: “(2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located, if such establishment— “. . . [meets one of four tests, designated ‘(i)-(iv)’ and framed with reference to another section of the Act]. “A 'retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.” This requirement has been met by the companies in this case. Section 13 (a) (4) of the Act, added in 1949" }, { "docid": "2313050", "title": "", "text": "JONES, Circuit Judge. Boyd Gammill, who was the defendant in the district court and is the appellee here, operated a place of business in Shreveport, Louisiana, under the name of Cotton Boll Market. The business consisted of a market for the sale of groceries, meats, poultry, produce and other foodstuffs, a barbecue stand, a restaurant, a liquor store and bar, and a poultry processing department. The Secretary of Labor brought suit under the authorization of Section 16(c) of the Fair Labor Standards Act, 29 U.S.C.A. § 216(c), against Gammill on behalf of six of the employees of his poultry department for minimum wages and overtime pay for varying periods between July 1, 1951, and March 31, 1953. Gammill interposed three defenses: that his business was a retail establishment and exempt under Section 13(a) (2) of the Act, 29 U.S.C.A. § 213(a) (2); that the six employees were excluded from coverage by Section 13(a) (4) of the Act, 29 U.S.C.A. § 213(a) (4); and that he was not, in the operation of his business, engaged in interstate commerce. The pertinent provisions of the Fair Labor Standards Act, Act of June 25, 1938, c. 676, 52 Stat. 1060, as amended by the Fair Labor Standards Amendments of 1949, c. 736, 63 Stat. 910, 29 U.S.C.A. 201 et seq., are as follows: “Exemptions “Sec- 13. (a) The provisions of sections 6 and 7 shall not apply with respect to * * * “(2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located. A ‘retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry; * * * “or (4) any employee employed by an establishment which qualifies as an exempt retail establishment under clause (2) of this subsection and is recognized as a retail establishment" }, { "docid": "13533312", "title": "", "text": "have something duplicated or reproduced. This itself indicates that appellant’s business operates in the level usually considered retail. We are of the opinion that the trial court placed too heavy a burden of proof upon appellant. He was not required to show unanimity of opinion on the part of authorities in every industry with which his business might be associated ; his burden was simply to show by a preponderance of the whole evidence that his services are “recognized” as retail in the “particular industry” with which he is found by the court to be identified. In the light of what has been said, we think appellant amply sustained that burden. Since it is not questioned that all of appellant’s services are rendered to customers located in Louisiana and that none of his services are for resale, it follows that the provisions of Section 13(a) (2) exempt appellant’s employees from the minimum wage provisions of the Act. Reversed. . 29 U.S.C.A. §§ 206 and 211. . “The provisions of Sections 6 and 7 shall not apply with respect to (2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located. A ‘retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.” Oct. 26, 1949, c. 736, 63 Stat. 917, 29 U.S.C.A. § 213. . Act of June 25, 1938, c. 676, 52 Stat. 1067. . Senators Taft and Donnell, members of the Labor and Public Welfare Committee, supplemented the Committee’s report with views of their own. After discussing the test established in Boland Electrical Co. v. Walling, supra, they said: “There is no sound basis to distinguish, in determining whether or not a sale is retail, between sales to customers for personal use and sales to customers for business use. Accordingly, it" }, { "docid": "5363972", "title": "", "text": "establishment” shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry; * *. . 29 U.S.C.A. § 213(a) (1): The provisions of sections 206 and 207 of this title shall not apply with respect to — any employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools), or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulation of the Secretary, subject to the provisions of the Administrative Procedure Act, except that an employee of a retail or service establishment shall not be excluded from the definition of employee employed in a bona fide executive or administrative capacity because of the number of hours in his workweek which he devotes to activities not directly or closely related to the performance of executive or administrative activities, if less than 40 per centum of his hours worked in the workweek are devoted to such activities) ; * * *. . The government has informed the court that “Keystone was initially made a party defendant in this action, but was dismissed pursuant to a stipulation between Keystone and the Secretary. Under the terms of this stipulation, Keystone agreed to insert clauses requiring compliance with the Fair Labor Standards Act in all future franchise agreements, and to attempt to amend all current franchise agreements by the insertion of similar clauses.” . With respect to the absence of a retail concept in the magazine industry, the court found as follows: . While we find it unnecessary in the present case to reach the question of whether the magazine industry contains a retail concept, we do note that the record on this issue was improperly developed by the Secretary. The legislative history of the Act contains no express mention of the magazine industry as such, but only of the newspaper industry." }, { "docid": "19178958", "title": "", "text": "to actual hours worked, although supplemental affidavits providing specific facts underlying the conclusory assertions were sufficient to allow plaintiffs to advance beyond the summary judgment phase); compare Mount Clemens Pottery, 328 U.S. at 684, 688, 693, 66 S.Ct. 1187 (time clock records demonstrated that the employees had worked more than 40 hours per week). Because Gatto has not produced sufficient evidence demonstrating a genuine issue of fact as to her eligibility for overtime compensation, Defendants are entitled to summary judgment on Count I. B. The Retail or Service Establishment Exemption Even if Gatto had satisfied her burden of establishing eligibility for overtime compensation, Defendants would still be entitled to summary judgment based on the “retail or service establishment” exemption to the overtime requirements of the FLSA: No employer shall be deemed to have violated subsection (a) of this section by employing any employee of a retail or service establishment for a workweek in excess of the applicable workweek specified therein, if (1) the regular rate of pay of such employee is in excess of one and one-half times the minimum hourly rate applicable to him under section 206 of this title, and (2) more than half his compensation for a representative period (not less than one month) represents commissions on goods or services.... 29 U.S.C. § 207(i). There is no dispute regarding two of the requirements for the exemption. Defendants maintain, and Gatto does not dispute, that Gatto’s regular rate of pay was in excess of one and one-half times the minimum hourly rate applicable to her under 29 U.S.C. § 206. (Defs.’ Mem. at 6- 7.) Nor does Gatto dispute that more than half of her pay represented commissions on goods or services. The parties do, however, dispute whether Gatto was employed by a “retail or service establishment.” Citing Mitchell v. Kentucky Finance Co., 359 U.S. 290, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959), Gatto contends that MSI cannot be a “retail or service establishment” because it is in the “financial industry.” (Pl.’s Resp. at 3.) For the following reasons, the court concludes that MSI is a “retail or" }, { "docid": "13827562", "title": "", "text": "ALLEN, Circuit Judge. The Administrator sought to enjoin the appellee from alleged violation of the Fair Labor Standards Act, 29 U.S.C., § 201 et seq., 29 U.S.C.A. § 201 et seq. The District Court, sitting without a jury, found that the appellee had not violated the Act; that the employees in question were exempt, and refused the relief prayed for. The Administrator claims that the ap-pellee has refused to compensate four of its employees for overtime work in accordance with the requirements of § 7 and § 15(a) (2) of the Act, 29 U.S.C., § 207(a) and § 213(a), 29 U.S.C.A. §§ '207(a), 213 (a). The pertinent provisions of the controlling statutes, Title 29 U.S.C. § 207(a) (1), (3), § 213(a), 29 U.S.C.A. §§ 207(a) (1, 3), 213(a), read as follows: § 207(a). “No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce— “(1) for a workweek longer than forty-four hours during the first year from the effective date of this section, “(2) for a workweek longer than forty-two hours during the second year from such date, or “(3) for a workweek longer than forty hours after the expiration of the second year from such date, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” § 213(a). “The provisions of sections 206 and 207 of this title shall not apply with respect to (1) any employee employed in a bona fide executive, administrative, professional, or local retailing capacity, * * * (as such terms are defined and delimited by regulations of the Administrator) * * It is conceded that all of the employees are engaged in the production of goods for commerce. Three of them, Jasper Page, Peter Spooner and Fred Stegman, are licensed operating engineers in appel-lee’s steam and electric power generating and heating department. This department is vital to the operation of appellee’s business, and is" }, { "docid": "12330657", "title": "", "text": "be some interstate-foreign commerce, and the employees working in the interstate-foreign aspect may not get the wages otherwise ordered by the act. At the time of the alleged offenses, the act required, if applicable, the payment of a dollar an hour for the first forty hours of work in a week and a dollar and a half an hour for overtime. It is quite obvious that Dickenson, percentagewise, was on the borderline of whether he was entitled to the retail exemption. In pertinent part, Section 13(a), the retail exemption, provided: “SEC. 13(a) The provisions of sections 6 and 7 [the amounts to be paid as a minimum] shall not apply with respect to — (2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located. A ‘retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or both) is not for resale and is recognized as retail sales or services in the particular industry.” It is settled that in a civil case the government must prove the work was done in commerce (interstate or foreign) or in the production of goods for it, but then, once coverage is proved, the defendant employer must prove by a preponderance of the evidence that he was a retailer under the act, meeting the percentage tests for exemption. Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 80 S.Ct. 453, 4 L.Ed.2d 393. Defendant acquiesced in instructions placing the same burden (by a preponderance of the evidence) upon him here. We think the government concedes that Dickenson met the 50 per cent test, but the disagreement is over the 75 per cent test of section 13(a), supra. As to coverage, the dollar volume of scrap sold to other dealers as “commerce” (on which the employees with whom we are concerned worked) is very, very small. The three years of scrap sales were as follows: 1959, $285.25," }, { "docid": "14003505", "title": "", "text": "the record keeping, minimum wage, and overtime provisions and to restrain the continued withholding of wages alleged to be due under the Act. Following a non-jury trial, the district court held that the defendant had carried a “bare burden” of demonstrating that the station came within the Section 13(a)(2) exemption for certain retail or service establishments. The Secretary appeals from that judgment and Yates cross appeals from rulings of the district court which excluded the testimony of several witnesses. As sympathetic as we are to Mr. Yates’ claim that the Secretary’s decision to enforce the Act against him is nothing more than bureaucratic overkill, we are nevertheless obliged to reverse the judgment of the district court in obedience to the language of the Act as construed by the United States Supreme Court in Idaho Metal Works v. Wirtz, 383 U.S. 190, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966), and out of respect for the discretion possessed by the Secretary of Labor to interpret and administer the Act. The minimum wage and maximum hour provisions of the Fair Labor Standards Act protect an employee who is “engaged in commerce or in the production of goods for commerce,” or is employed “in an enterprise engaged in commerce or in the production of goods for commerce,” 29 U.S.C. §§ 206(a), 206(b), 207(a)(1), 207(a)(2) (1970). An enterprise is defined by the statute to mean only those businesses whose “annual gross volume of sales made or business done is not less than $250,000.” 29 U.S.C. § 203(s)(l) (Supp. V 1975). Since the parties stipulated at trial that Gateway did not have that volume of sales, the statute applies to Gateway only if the employees of the gas station were “engaged in commerce.” In determining whether such an employee is so engaged the question is whether his work is “ ‘so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated, local activity.’ ” Mitchell v. Lublin, McGaughy & Associates, 358 U.S. 207, 212, 79 S.Ct. 260, 1264," }, { "docid": "2110093", "title": "", "text": "sales of goods or services is made within the State in which the establishment is located, and such establishment . . . has an annual dollar volume of sales which is less than $250,000 . . . .” A “retail or service establishment” is defined in that provision as “an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry . . . .\" Although the dollar volume of sales of the single enterprise consisting of all of the employment agencies owned by Walker either as sole proprietor or as a partner exceeded $250,000, none of the individual agencies ever exceeded $250,-000 annual gross volume of sales. To obtain the exemption, therefore, Walker need show only that the individual agencies were retail and service establishments within the meaning of the Act. Walker’s claim rests on two arguments: (1) that although an early administrative ruling held that employment agencies were not exempt, a 1949 amendment to Section 13(a)(2) broadened the scope of the exemption to include businesses such as his; and (2) that his businesses meet the statutory requirements because there is industry recognition that its sales are “retail sales or services.” The employer has the burden of proof in establishing facts requisite to an exemption, Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 86 S.Ct. 737, 15 L.Ed.2d 694, reh. denied, 383 U.S. 963, 86 S.Ct. 1219, 16 L.Ed.2d 305 (1966); Schultz v. Louisiana Trailer Sales, Inc., 428 F.2d 61 (5th Cir.), cert. denied, 400 U.S. 902, 91 S.Ct. 139, 27 L.Ed.2d 139 (1971), and the exemption provisions are to be narrowly construed against those seeking to assert them, Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960). From the beginning, the Fair Labor Standards Act of 1938 provided that retail establishments were exempt from the Act. The Department of Labor’s Wage and Hour Administrator issued in 1941 an interpretative bulletin which characterized “retail establishments” as those businesses" }, { "docid": "23251346", "title": "", "text": "such records for such periods of time, and shall make such reports therefrom to the Administrator as he shall prescribe by regulation or order as necessary or appropriate for the enforcement of the provisions of this chapter or the regulations or orders thereunder. * * sft * * * “§ 215. Prohibited acts; prima facie evidence “(a) After the expiration of one hundred and twenty days from June 25, 1938, it shall be unlawful for any person— “(2) to violate any of the provisions of section 206 or section 207 of this title, or any of the provisions of any regulation or order of the Administrator issued under section 214 of this title; “(5) to violate any of the provisions of section 211(c) of this title, . Defendants did not maintain records of the hours worked by each employee on afterhours service calls but the eight hour figure was apparently considered a fair average for those employees working beyond regular working hours. . In recent decisions, this court has found employees engaged in similar towing operations to be engaged “in commerce” within the meaning of the Act. Brennan v. Keyser, 507 F.2d 472, 474-75 (9th Cir. 1974); Gray v. Swanney-McDonald, Inc., 436 F.2d 652, 653 (9th Cir. 1971). . See Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960). While the company did show that over 50% of its annual sales were made within Arizona, it failed to show that 75% of them were “not for resale,” and that 75% of its sales were “recognized as retail in the particular industry.” Its contention on oral argument that its largest customers are auto dealerships certainly could not have been conclusive even if introduced below. . 29 U.S.C. § 206(b) (1970). . For those earning the minimum monthly guaranteed salary of $400, the $92.31 average wage per week could be broken down into a regular hourly rate of between $1.82 and $1.83 per hour for the first 40 hours per week, and an overtime rate of $2.73 or $2,735 for the last seven. For those" }, { "docid": "14003507", "title": "", "text": "3 L.Ed.2d 243 (1959); Mitchell v. Vollmer & Co., 349 U.S. 427, 429, 75 S.Ct. 860, 99 L.Ed. 1196 (1955). It is undisputed that most of the vehicles fueled by Gateway’s employees were engaged in interstate transportation of goods. We hold that in fueling those vehicles the employees did in fact directly facilitate interstate commerce and fall within the overall coverage of the Act. This conclusion is supported by an interpretative regulation issued by the Secretary, which advises that filling station employees who service interstate vehicles are “engaged in commerce.” The Secretary argues that the district court erroneously found Gateway to be exempted from the minimum wage and maximum hour provisions by reason of Section 13(a)(2) of the Act, which then stated: § 213. Exemptions. (a) The provisions of sections 206 and 207 of this title shall not apply with respect to— (2) any employee employed by any retail or service establishment (except an establishment or employee engaged in laundering, cleaning, or repairing clothing or fabrics or an establishment engaged in the operation of a hospital, institution, or school described in section 203(s)(4) of this title), if more than 50 per centum of such establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located, and such establishment is not in an enterprise described in section 203(s) of this title or such establishment has an annual dollar volume of sales which is less than $250,000 (exclusive of excise taxes at the retail level which are separately stated). A “retail .or service establishment” shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry . 29 U.S.C. § 213(a)(2) (1970), as amended, 29 U.S.C.A. § 213(a)(2) (Supp.1977). A business must meet three tests to qualify for the exemption as a retail or service establishment under Section 13(a)(2). First, more than 50% of its annual dollar volume of sales of goods or services must be made" }, { "docid": "12498532", "title": "", "text": "stores as set forth above. The purpose of this trust is to channel a share of the profits to certain employees of the stores. The basic facts, then, are clear. Mr. Walton and his family own a majority interest in each of the three stores. He is president and a director of the three Wal-Mart corporations, and has personal authority to direct the activities of each of the store managers. All of the stores are engaged in essentially identical operations. Title 29, U.S.C.A., § 213 provides: “(a) The provisions of sections 206 and 207 [minimum wage and maximum hours] of this title shall not apply with respect to— ****** “(2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located, if such establishment— “(i) is not an enterprise described in section 203 (s) of this title, or ****** “(iv) is such an enterprise and has an annual dollar volume of sales * * * which is less than $250,000. “A ‘retail service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry; ” The term “enterprise,” referred to in § 213(a) (2) (i), is generally defined in 29 U.S.C.A. § 203(s) as follows: “(s) ‘Enterprise engaged in commerce or in the production of goods for commerce’ means any of the following in the activities of which employees are so engaged, including employees handling, selling, or otherwise working on goods that have been moved in or produced for commerce by any person: \"(1) any such enterprise which has one or more retail or service establishments if the annual gross volume of sales of such enterprise is not less than $1,000,000 * * * at the retail level which are separately stated and if such enterprise purchases or receives goods for resale that move or have moved" }, { "docid": "5363945", "title": "", "text": "doing promotional work for sales to be made by others, i. e., the student managers. The court found that such promotional work was not exempted under the authority of the applicable department Bulletin. 29 C.F.R. § 541.504(a). The court also found that the Ben Franklin Reading Club was not an exempt “retail or service establishment” within the meaning of § 13(a) (1). Although the Club’s annual gross receipts were less than $250,000.00, as required by the statute, the court found the exemption inapplicable because (a) more than 50 per cent of Waechter’s annual dollar volume of sales are made outside the state of Florida, and (b) no concept of retail sales or servicing exists in the magazine industry. Waechter appeals from these determinations by the court below. We affirm. We find no substance to appellant’s claim that the “student salesmen” are outside salesmen within the meaning of § 13(a) (1). We also agree with the district court’s determination that appel lant is not entitled to the retail establishment exemption of § 13(a) (2). On this point, however, we do not rely, as did the district court, on the absence of a retail concept in the magazine industry, a finding on which we express no opinion. Instead, we base our decision on the narrower ground that appellant does not maintain in his business the kind of “establishment” which Congress exempted under the Act. “Defendant’s sales are not recognized as retail sales in the particular industry, for there is no concept of retail selling or servicing in the magazine industry. [Citing Idaho Sheet Metal Works v. Wirtz, 1966, 383 U.S. 190, 86 S.Ct. 737, 745, 15 L.Ed.2d 694], In so holding, the Court deems these ‘student salesmen’ for magazine subscription services to be analogous to newspaper boys and there is no concept of retail selling or servicing in the newspaper industry. [Citing Idaho Sheet Metal Works v. Wirtz, supra; Mitchell v. Kentucky Finance Co., 1959, 359 U.S. 290, 79 S.Ct. 756, 759, 3 L.Ed.2d 815]. Where Congress intended that this type of business have an exemption, one is specifically provided by the" }, { "docid": "6707755", "title": "", "text": "U.S. at 495, 63 S.Ct. at 1250. II. RETAIL EXEMPTION Defendant contends that even if the plaintiff was engaged in commerce, Airways Parking was exempt from the minimum wage and hour provisions of the Act by virtue of the retail exemption provision of 29 U.S.C. § 213(a) (2). This section provides that the wage and hour sections of the Act, §§ 206 and 207, shall not apply to “(2) [A]ny employee employed by any retail or service establishment * * * if more than 50 per centum of such establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located, and such establishment is not in an enterprise described in section 203 (s) of this title or such establishment has an annual dollar volume of sales which is less than $250,000 (exclusive of excise taxes at the retail level which are separately stated). A ‘retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of goods and services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.” It is well understood that the exemption is to be narrowly and strictly construed. The burden is on the employer, the defendant in this ease, to show by a preponderance of the evidence that his employees are “unmistakably within the terms and spirit of the exemption.” Mitchell v. Kroger Co., 150 F.Supp. 30 (W.D.Mo. 1957), reversed and remanded on other grounds, 248 F.2d 935 (8th Cir., 1957). The purpose of this provision was to exempt from coverage those purely local retail establishments, like the corner drug store or grocer, which might do an interstate business by virtue of their location near state lines. Annot., 3 L.Ed.2d 1912 (1959). Congress felt that retail concerns of this nature did not sufficiently influence the stream of interstate commerce to warrant imposing the wage and hour requirements on them. A. H. Phillips Inc., v. Walling, 324 U.S. 490, 497, 65 S.Ct. 807, 89 L.Ed. 1095 (1945). Plaintiff contends that the parking" } ]

[ { "docid": "23682717", "title": "", "text": "scope of a final antidumping duty order, the ITA may not modify the scope of that order. Alsthom Atlantique, 787 F.2d at 571. CONCLUSION For the foregoing reasons, the April 7, 1992 judgment of the CIT is AFFIRMED. . A nylon core flat belt is a continuous, multilayer strip made up of a core of oriented nylon sheet having on each surface a nylon, fabric or rubber layer. . 54 Fed.Reg. 25314 (the ITA published a correction to this order on August 4, 1989, 54 Fed.Reg. 32104, specifically excluding certain belts (not pertinent here) from the scope of that order). . Of interest, Commerce specifically provided for such an analysis in its recently promulgated regulation 19 CFR § 353.29(i). However, Commerce issued this regulation on March 9, 1990, 55 Fed.Reg. 9046, after the date of the ITA’s scope ruling. This regulation was therefore not applicable during any stage of the challenged proceeding. . 53 Fed.Reg. 28036 (the ITA republished the notice on August 4, 1988, 53 Fed.Reg. 29366, because some paragraphs were printed out of order in the first publication). . 54 Fed.Reg. 5114. . Nitta argues in this appeal that its nylon core flat belts were not covered by any of the tariff classification numbers in the ITA’s notice of the antidumping investigation. The Government counters that Nitta has never explained the basis for this assertion. .The telex reiterated that the actual description of the scope of the investigation was controlling, and that the merchandise covered by the investigation included \"flat belts, in part or wholly of rubber or plastic, and containing textile fiber (including glass fiber) or steel wire, cord or strand.” . Gates relied upon Diversified Products, 572 F.Supp. at 887 and Royal Business Machines, Inc. v. United States, 1 CIT 80, 507 F.Supp. 1007 (1980), aff'd, 669 F.2d 692 (CCPA 1982) for this proposition. . 54 Fed.Reg. 15485. 10. Ernest Siegling and Siegling America, Inc. had also submitted to the ITA their viewpoints as to whether nylon core flat belts and another type of belt, spindle belting, should be excluded from the scope of the investigation." } ]

[ { "docid": "21428197", "title": "", "text": "Diversified Prods, criteria of that regulation. The government and the Korean Producers counter that substantial evidence supports Commerce’s final scope determination. Commerce has the inherent authority to define the scope of an investigation. See Koyo Seiko Co., Ltd. v. United States, 17 CIT 1076, 1078, 834 F.Supp. 1401, 1403 (1993). This authority is codified in Commerce regulations. 19 C.F.R. § 353.29(1) (1996). Under this regulation, the starting point for determining whether merchandise is within the “class or kind” of merchandise described in an antidumping order is to examine the descriptions of the merchandise in the petition, the initial investigation, and the determinations of the Secretary and the Commission to determine whether such descriptions are dispositive of the matter. Id. § 353.29(i)(l). If Commerce determines that the matter is not dispositively resolved, an analysis under the Diversified Prods, factors is conducted. Id. § 353.29(i)(2). In the present case, Commerce first considered the language of the petitions and noted that the petitions (1) defined the subject merchandise as welded non-alloy pipes with certain physical criteria, (2) stated that the pipes and tubes in question were generally known as standard pipe, though they might also be called structural or mechanical tubing in certain applications, and (3) provided an illustrative list of typical uses for standard pipe and observed that the merchandise was most commonly produced to the ASTM A-53 specification for standard pipe. Final Scope Det, 61 Fed.Reg. at 11,609. Commerce noted that the petitions did not mention either line pipe or dual-certified pipe. Id. Furthermore, Commerce remarked that in the notice of initiation, it had adopted petitioners’ language to define the merchandise covered by the investigations, which also did not mention either line pipe or dual-certified pipe. Id. Commerce also noted that neither the petitions nor the initiation notice indicated that actual end use was a consideration in designating the scope of the investigations. Id. at 11,610. Based on the petitions and the notice of initiation, Commerce concluded that physical characteristics, not actual end uses, defined scope and neither document addressed, and thérefore neither definitely resolved, the treatment of line pipe or" }, { "docid": "942702", "title": "", "text": "(Ct. Int’l Trade 2016) (same); Walgreen Co. v. United States, 33 C.I.T. 1620, 1623 (2009) (similar), aff'd, 620 F.3d 1350. The question of whether a product meets the unambiguous scope terms presents a question of fact reviewed for substantial evidence. See, e.g., Novosteel, 284 F.3d at 1269. “Scope orders are interpreted with the aid of’ other sources as described by regulation. Duferco, 296 F.3d at 1097 (internal quotation marks and citation omitted). Specifically, Commerce “will” consult “[t]he descriptions of the merchandise contained in the petition, the initial investigation, and [prior] determinations of [Commerce] (including prior scope determinations) and the [ITC].” 19 C.F.R. § 351.225(k)(l). Although a party’s description of merchandise in these sources may aid Commerce in making its determination, that description “cannot substitute for language in the order itself’ because “[i]t is the responsibility of [Commerce], not those who [participated in] the proceedings, to determine the scope of the final orders.” Duferco, 296 F.3d at 1097 (footnote omitted). Commerce’s analysis of these sources against the product in question produces factual findings reviewed for substantial evidence. See, e.g., Fedmet Res. Corp. v. United States, 755 F.3d 912, 919-22 (Fed. Cir. 2014) (reviewing Commerce’s analysis under § 351.225(k)(1) for substantial evidence). If the descriptions in the § 351.225(k)(l) sources “are not disposi-tive,” Commerce will consider the following factors: “(i) [t]he physical characteristics of the product; (ii) [t]he expectations of the ultimate purchasers; (iii) [t]he ultimate use of the product; (iv) [t]he channels of trade in which the product is sold; and (v) [t]he.manner in which the product is advertised and displayed.” 19 C.F.R. § 351.225(k)(2). “In conducting this analysis, it is well settled that Commerce has discretion in how to balance” these factors. Novosteel SA v. United States, 128 F.Supp.2d 720, 732 (Ct. Int’l Trade 2001) (internal quotation marks and citations omitted), aff'd, 284 F.3d 1261. Commerce’s analysis of these factors against the product in question yields factual findings reviewed for substantial evidence. See, e.g., Crawfish Processors All. v. United States, 483 F.3d 1358, 1363-64 (Fed. Cir. 2007) (reviewing Commerce’s analysis under § 351.225(k)(2) for substantial evidence). B. The CIT’s Interpretation" }, { "docid": "22263493", "title": "", "text": "Commerce was not required to examine the physical characteristics of the accused product, the expectations of the ultimate purchasers, the ultimate use of the accused product, or the channels of trade. See 19 C.F.R. § 353.29(i)(2). Wheatland’s argument that the Orders exclude only line and dual-certified pipe that is actually used as line pipe contradicts the unambiguous language of the Orders, which refer to the pipes’ principal use at the time of entry instead of actual use. See Final Scope Determination, 61 Fed.Reg. at 11,611 (“The phrase ‘of a kind used for’ is commonly used by Customs to signify the chief, or principal, use of a product and not its actual use.”). Wheatland also contradicts its statements during the antidumping investigations that they should cover pipe entering the United States under one of the tariff numbers pertaining to standard pipe and that pipe entering as line pipe would be outside the scope of the petitions. The International Trade Commission’s (ITC) reliance on these statements in conducting its injury analysis makes Wheat-land’s new position especially untenable. As a result of Wheatland’s representations, the ITC did not “examine the impact of imports of line pipe upon the domestic industry.” Id. It is possible that the ITC would not have found domestic injury if it had examined line pipe imports. Having argued that the orders should exclude line and dual-certified pipe regardless of actual use in order to obtain the antidumping duty orders, Wheatland cannot now urge a broader interpretation during enforcement of the orders. Cf. Coleco Indus., Inc. v. United States Int’l Trade Comm’n, 65 C.C.P.A. 105, 573 F.2d 1247, 1257 (1978) (“A patentee having argued a narrow construction for his claims before the United States Patent and Trademark Office (PTO) should be precluded from arguing a broader construction for the purposes of infringement.”). Accordingly, the court was correct to sustain Commerce’s scope inquiry under 19 C.F.R. § 353.29(i). Wheatland next argues that Commerce’s decision to conduct - this section 353.29(i) inquiry instead of one under section 353.29(g), which pertains to allegations of minor alterations, was arbitrary and/or an abuse of its" }, { "docid": "21428195", "title": "", "text": "as one for a scope determination, and that it would be a waste of time and improper to order a remand until error has been demonstrated. On April 8, 1997, the court ordered Commerce to “supplement its brief with an explanation of the meaning of 19 U.S.C. § 1677j(c)(l) & (2) as they relate to this case. Commerce shall also address any other legal issues which would preclude or allow an anti-circumvention finding for the alleged ‘minor alteration.” ’ Wheatland Tube Co. v. United States, No. 96-04-01078 (Apr. 8, 1997) (order). The government responded with a supplemental memorandum stating that in Commerce’s view, ■ a remand in this case would not be futile because, as a matter of law, the Department would not be precluded from issuing an anticireumvention order in this proceeding. In the Department’s view, the statute would permit it to consider the allegedly altered merchandise to be within the scope of the outstanding antidumping duty order, notwithstanding the fact that the Department has determined that the merchandise is not within the class or kind of merchandise defined by the antidumping duty order. The subjecting of altered merchandise to coverage under the antidumping duty order is governed by the conditions explicitly set forth in the statute — that the alteration be “minor” and that Commerce not determine that inclusion of the altered merchandise within the scope of the order would be “unnecessary.” Def.’s Supplemental Mem. at 2. STANDARD OF REVIEW This court “shall hold unlawful any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B) (1994); Koyo Seiko Co., Ltd. v. United States, 20 F.3d 1160, 1164 (Fed.Cir.1994). DISCUSSION I. Final Negative Scope Determination Wheatland contends that Commerce erred in determining that the scope of the standard pipe orders, as evaluated under 19 C.F.R. § 353.29(i)(l), is dispositively resolved with respect to the pipe at issue. Wheatland maintains that Commerce should have conducted a scope inquiry pursuant to 19 C.F.R. § 353.29(i)(2) and evaluated line pipe and dual-certified pipe under the" }, { "docid": "21428196", "title": "", "text": "or kind of merchandise defined by the antidumping duty order. The subjecting of altered merchandise to coverage under the antidumping duty order is governed by the conditions explicitly set forth in the statute — that the alteration be “minor” and that Commerce not determine that inclusion of the altered merchandise within the scope of the order would be “unnecessary.” Def.’s Supplemental Mem. at 2. STANDARD OF REVIEW This court “shall hold unlawful any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B) (1994); Koyo Seiko Co., Ltd. v. United States, 20 F.3d 1160, 1164 (Fed.Cir.1994). DISCUSSION I. Final Negative Scope Determination Wheatland contends that Commerce erred in determining that the scope of the standard pipe orders, as evaluated under 19 C.F.R. § 353.29(i)(l), is dispositively resolved with respect to the pipe at issue. Wheatland maintains that Commerce should have conducted a scope inquiry pursuant to 19 C.F.R. § 353.29(i)(2) and evaluated line pipe and dual-certified pipe under the Diversified Prods, criteria of that regulation. The government and the Korean Producers counter that substantial evidence supports Commerce’s final scope determination. Commerce has the inherent authority to define the scope of an investigation. See Koyo Seiko Co., Ltd. v. United States, 17 CIT 1076, 1078, 834 F.Supp. 1401, 1403 (1993). This authority is codified in Commerce regulations. 19 C.F.R. § 353.29(1) (1996). Under this regulation, the starting point for determining whether merchandise is within the “class or kind” of merchandise described in an antidumping order is to examine the descriptions of the merchandise in the petition, the initial investigation, and the determinations of the Secretary and the Commission to determine whether such descriptions are dispositive of the matter. Id. § 353.29(i)(l). If Commerce determines that the matter is not dispositively resolved, an analysis under the Diversified Prods, factors is conducted. Id. § 353.29(i)(2). In the present case, Commerce first considered the language of the petitions and noted that the petitions (1) defined the subject merchandise as welded non-alloy pipes with certain physical criteria, (2) stated" }, { "docid": "6203509", "title": "", "text": "] criteria ‘essential factors’ to be used as ‘guidelines’ in making rulings on specific products. Id. (emphasis added). It is clear that by 1978, and by inference 1976, that Treasury utilized the same totality of the circumstances test in antidumping scope determinations as set forth in Carborundum. Second, the court notes that the 1976 standards are not identical to the standards applied currently. Specifically, the current threshold test of finding ambiguity in the documentary description of the merchandise as set forth under 19 C.F.R. § 353.29(i)(1) before resorting to Diversified Products or Carborundum type factors is not applicable under the 1976 standards. Neither party cites any support for the proposition that Treasury applied the threshold test in 1976. Moreover, the court in Kyowa Gas implies that Treasury did not apply the threshold test. See 7 CIT at 140, 582 F.Supp. at 889. As late as 1984, the threshold test was considered a recent invention of Commerce, implying that neither Commerce or Treasury had applied this test previously in antidump-ing scope determinations. Id. Specifically, the court in Kyowa Gas stated: [t]he Department qualifies the utilization of these [Diversified Products] criteria as a standard or test by conditioning their use upon a preliminary finding that the initial product description is “vague.” Neither precedent nor authority has been submitted to substantiate the newly enunciated ITA standard.... The court is unable to accept this qualified application. Id. In addition, it would be impractical to apply today’s threshold test based upon the evidence available in 1976. Under the current law, Commerce analyzes four documents in reaching its determination of whether the merchandise description is dispositive or ambiguous. 19 C.F.R. § 353.29(i)(1). In 1976, out of the four documents only the petition existed. Moreover, in 1976, Treasury did not publish an official definition of stainless steel plate as Commerce would do today; therefore any documents which might be analogous lacked an anchoring description. These facts suggest that Treasury would not have relied upon the petition definition as the dis-positive factor in its antidumping scope determination, but instead it was merely one factor considered under the totality" }, { "docid": "22077778", "title": "", "text": "begin with, the description of the merchandise contained in the petitions does not show that the Plate Orders unambiguously excluded the Reiner Brach profile slab, contrary to Novosteel’s assertion. The “Commerce Department enjoys substantial freedom to interpret and clarify its antidumping orders. But while it may interpret those orders, it may not change them.” Ericsson GE Mobile Communications, Inc. v. United States, 60 F.3d 778, 782 (Fed.Cir.1995); accord Smith Corona Corp. v. United States, 915 F.2d 683, 686 (Fed.Cir.1990). The applicable regulations explain how Commerce will determine “whether a particular product is included within the scope of an [antidumping or countervailing duty] order.” 19 C.F.R. § 351.225(k). First, Commerce will examine the “descriptions of the merchandise contained in the petition, the initial investigation, and the determinations of the Secretary [of Commerce] and the [International Trade] Commission.” 19 C.F.R. § 351.225(k)(l). Note that, in setting forth the “descriptions of the merchandise contained” in its petition, see id., a petitioner (like Bethlehem Steel) need not “circumscribe the entire universe of articles” that might possibly fall within the order it seeks. Nitta Indus., 997 F.2d at 1464; accord Wirth, 5 F.Supp.2d at 976 (stating that the “ ‘absence of a reference to a particular product in the Petition does not necessarily indicate that the product is not subject to an order’ ”) (citation omitted). Indeed, the regulations themselves recognize that Commerce must conduct scope determinations in the first place because the “descriptions of the subject merchandise ... must be written in general terms.” 19 C.F.R. § 351.225(a) (emphasis added). Second, if a review of these initial criteria does not definitively resolve whether an order covers a particular product, Commerce must then consider the five Diversified Products criteria. These criteria consist of the “physical characteristics of the [subject] product,” the “expectations of the ultimate purchasers,” the “ultimate use of the product,” the “channels of trade in which the product is sold,” and the “manner in which the product is advertised and displayed.” 19 C.F.R. §§ 351.225(k)(2)(i) — (v). In this case, no language in the petitions unambiguously excludes the Reiner Brach profile slab from" }, { "docid": "127642", "title": "", "text": "the meaning and scope of ... orders are issues ‘particularly within the expertise’ and ‘special competence’ of Commerce.” King Supply Co. v. United States, 674 F.3d 1343, 1348 (Fed.Cir.2012) (quoting Sandvik Steel Co. v. United States, 164 F.3d 596, 600 (Fed.Cir.1998)). A party challenging a scope ruling by Commerce under the substantial evidence standard “has chosen a course with a high barrier to reversal.” Id. (internal quotation marks and citations omitted). I. Legal Framework There is no specific statutory provision governing the interpretation of the scope of antidumping or countervailing orders. However, Commerce’s regulations permit an importer to “request a scope ruling as to whether a particular product is covered by an ... order.” Sango Int’l L.P. v. United States, 484 F.3d 1371, 1376 (Fed.Cir.2007) (citing 19 C.F.R. § 351.225(c)(1)). The language of the order is the “cornerstone” of a scope analysis and “a predicate for the interpretive process.” Duferco Steel, 296 F.3d at 1097. The regulations require Commerce, when determining the scope of an order, to engage in a two-step process. First, Commerce must consider the scope language contained in the order itself, the descriptions contained in the petition, and how the scope was defined in the investigation and in the determinations issued by Commerce and the ITC. Duferco Steel, 296 F.3d at 1097; 19 C.F.R. § 351.225(k)(l). The petition and preliminary determinations of Commerce and the ITC involved in the underlying duty investigations “may provide valuable guidance as to the interpretation of the final order.” Id. If Commerce concludes the product is, or is not, included within the scope of the order, Commerce issues a final scope ruling. See Eckstrom Indus., Inc. v. United States, 254 F.3d 1068, 1071 (Fed.Cir.2001). If a subsection (k)(l) analysis is not dispositive, then Commerce proceeds to an analysis of the Diversified Products Criteria under subsection (k)(2) of its regulations. These criteria are: (1) physical characteristics, (2) expectations of ultimate purchasers, (3) ultimate use, (4) channels of trade in which the product is sold, and (5) manner of advertising and display. 19 C.F.R. § 351.225(k)(2). II. Analysis A. The CWC Companies Had Standing" }, { "docid": "14977193", "title": "", "text": "at less than fair value (i.e., being “dumped”), they may petition Commerce to impose duties on the importer. Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1089 (Fed.Cir.2002). Commerce first makes an initial determination “of whether there is a reasonable basis to believe or suspect that the merchandise is being sold, or is likely to be sold, at less than fair value.” 19 U.S.C. § 1673b(b)(l)(A). Commerce then makes a “final determination of whether the subject merchandise is being, or is likely to be, sold in the United States at less than its fair value.” Id. § 1673d(a)(l). As relevant here, “subject merchandise” is “the class or kind of merchandise that is within the scope of an ... [antidumping] order.” Id. § 1677(25). In the final determination, Commerce defines the scope of products that are subject to the antidumping order. “[B]ecause the descriptions of subject merchandise contained in [Commerce’s] determinations must be written in general terms,” Commerce may issue “ ‘scope rulings’ that clarify the scope of an order ... with respect to particular products.” 19 C.F.R. § 351.225(a). The importer may present its arguments for why its products do not fall within the scope of the anti-dumping order, and members of the domestic industry may reply with counterarguments. Commerce makes its scope rulings in one or two steps: (k) [I]n considering whether a particular product is included within the scope of an order ... the Secretary will take into account the following: (l) The descriptions of the merchandise contained in the petition, the initial investigation, and the determinations of the Secretary (including prior scope determinations) and the Commission. (2) When the above criteria are not dis-positive, the Secretary will further consider: (i) The physical characteristics of the product; (ii) The expectations of the ultimate purchasers; (iii) The ultimate use of the product; (iv) The channels of trade in which the product is sold; and (v) The manner in which the product is advertised and displayed. Id. § 351.225(k)(1 — 2). If Commerce determines that the application for a scope ruling and the criteria in § 351.225(k)(l) (“(k)(l) criteria”)" }, { "docid": "9796580", "title": "", "text": "this opinion is entered. Any comments or responses by the parties to the remand results are due within thirty (30) days thereafter. Any rebuttal comments are due within fifteen (15) days of the date that the responses or comments are due. . The Department of Treasury was responsible for administering the antidumping law until 1979, when this responsibility was transferred to Commerce. . A revised version of 19 C.F.R. § 353.29(i) (1994) (Other Scope Determinations), was promulgated in 1990 to incorporate the factors set forth in Diversified Prods. Corp. v. United States, 6 CIT 155, 572 F.Supp. 883 (1983). The section states, in relevant part: [I]n considering whether a particular product is within the class or kind of merchandise described in an existing order, the Secretary will take into account the following: (1) The descriptions of the merchandise contained in the petition, the initial investigation, and the determinations of the Secretary and the Commission. (2) When the above criteria are not disposi-tive, the Secretary will further consider: (i) The physical characteristics of the product; (ii) The expectations of the ultimate purchasers; (iii) The ultimate use of the product; and (iv) The channels of trade. . In American NTN, 14 CIT at 327-28, 739 F.Supp. at 1562, ANTN argued that green turned rings that have not been heat treated were not within the scope of the 1987 TRB Order. ANTN relied on an ITC staff report that contained a description of \" 'unfinished bearing components;’ those being ‘the cones, cups and rollers that have been green machined and heat treated ... but that require final finishing.’ ” Id. at 323, 739 F.Supp. at 1559 (citation omitted). Commerce examined the 1986 Timken Petition and determined that it was ambiguous because it did not explicitly refer to green turned rings that are not heat treated. Id. at 327-28, 739 F.Supp. at 1562. The court then held that the ITC staff report language defining unfinished parts varied from the language of the 1986 Timken Petition. American NTN, 14 CIT at 329, 739 F.Supp. at 1563. . Koyo claims that Commerce discerned the hypothetical intent" }, { "docid": "6203516", "title": "", "text": "clarify the scope of a prior dumping finding, but cannot change the scope of the determination. 12 CIT at 611, 689 F.Supp. at 1221. In Fuji Elec., the case involved a Treasury determination, a subsequent clarification by Treasury and, as here, a subsequent reexamination of the determination by Commerce. Id. at 610-11, 689 F.Supp. at 1219. . Commerce currently makes scope determinations pursuant to 19 C.F.R. § 353.29(i). . The four factors are: (1) the physical characteristics of the product; (2) the expectations of the ultimate purchasers; (3) the ultimate use of the product; and (4) the channels of trade. 19 C.F.R. § 353.29(i)(2); Diversified Prods., 6 CIT at 162, 572 F.Supp. at 889. See also 19 U.S.C. § 1677j (same factors utilized for analyzing later developed merchandise for anticircumvention purposes). . It is not clear to the court exactly how Treasury considered these factors. . In addition, classification of stainless steel by use is problematic. Kirk-Othmer 21 •Encyclopedia of Chemical Technology 552 (3d Ed.1983) (noting that classification of steel by use contradicts the standard industry practice, whereas classification of steel by chemical composition is preferred). . Because of this holding there is no need to address arguments relating to Commerce’s 1990 affirmation of the 1976 Treasury determination. . In Carborundum, the court found that it must consider all pertinent circumstances in classifying merchandise. Carborundum, 536 F.2d at 377; Star-Kist Foods, Inc. v. United States, 45 C.C.P.A. 16, 19, 1957 WL 8256 (1957). Specific, but not exclusive factors included: general physical characteristics of the merchandise, expectation of the ultimate purchasers, the channels, class or kind of trade in which the merchandise moves, environment of the sale (i.e., accompanying accessories and the manner in which the merchandise is advertised and displayed), the use if any in the same manner as merchandise which defines the class, the economic practicality of so using the import, and the recognition in the trade of this use. Carborundum, 536 F.2d at 377; see also Maher-App & Co. v. United States, 57 C.C.P.A. 31, 37, 418 F.2d 922 (1969) (Baldwin, J. concurring); United States v. Baltimore &" }, { "docid": "22369390", "title": "", "text": "'rectangular.' ” Commerce's Br. at 18 (citations omitted). Moreover, Commerce admits that Duferco's product did not satisfy the strict mathematical definition of rectangularity, stating that \"a . plate with a pattern in relief, such as Dufer-co’s floor plate, was clearly covered by the petitions as a rolled product of solid rectangular (other than square) cross section even if the pattern in relief rendered the product somewhat non-rectangular.” Id. at 30 (third emphasis added). . 19 C.F.R. § 351.225(k) explains the interpretive process. The regulation provides, in pertinent part, that: in considering whether a particular product is included within the scope of an ..order ..., the Secretary will take into account the following: (1) The descriptions of the merchandise contained in the petition, the initial investigation, and the determinations of the Secretary (including prior scope determinations) and the Commission. 19 C.F.R. § 351.225(k)(1) (2001). Subsection (k)(2) of the regulation provides that if the criteria set forth in subsection (k)(l) are not dispositive, Commerce will consider the so-called Diversified Products factors to determine the scope of the order. Those factors were first articulated in Diversified Products Corp. v. United States, 572 F.Supp. 883 (CIT 1983) and include: “(i) [t]he physical characteristics of the product; (ii) [t]he expectations of the ultimate purchasers; (iii) [t]he ultimate use of the product; (iv) [t]he channels of trade in which the product is sold; and (v) [t]he manner in which the product is advertised and displayed.” 19 C.F.R. § 351.225(k)(2) (2001). . In its brief to this court, Commerce concedes that “it is the responsibility of Commerce to determine the proper scope of the investigation and of the antidumping order, not of the complainant before Commerce.” Commerce's Br. at 39 (citing Mitsubishi Elec. Corp. v. United States, 898 F.2d 1577, 1582-83 (Fed.Cir.1990))." }, { "docid": "4933502", "title": "", "text": "product, not previously included, is of the class or kind of merchandise contemplated by the finding. Among the factors considered by the ITA are the general physical characteristics of the product; the expectations of the ultimate purchaser; the channels of trade in which the product is sold; the manner in which the product is advertised and displayed; and the ultimate use of the product. See Parts for Self-Propelled Bituminous Paving Equipment from Canada; Clarification of Scope and Preliminary Results of Administrative Review of Anti-dumping Finding, 46 Fed.Reg. 47806, 47807 (September 30, 1981). The foregoing criteria have been recognized and utilized by our appellate court as factors in determining whether an imported product belonged to a particular class or kind of merchandise for tariff classification purposes. See United States v. Carborundum Co., 63 CCPA 98, 102, 536 F.2d 373, 377, cert. denied, 429 U.S. 979, 97 S.Ct. 490, 50 L.Ed.2d 587 (1976). This court in Diversified Products Corp. approved these criteria in determining whether a new product was within the class or kind of merchandise described in a prior antidumping finding. In the proceedings conducted by the ITA presently under review, the Commerce Department states in its notice of final results that it did not apply the aforementioned criteria in determining whether KyowaglasXA is within the scope of the 1976 anti-dumping finding. The Department qualifies the utilization of these criteria as a standard or test by conditioning their use upon a preliminary finding that the initial product description is “vague.” Neither precedent nor authority has been submitted to substantiate the newly enunciated ITA standard. When the record is replete with differing evidentiary facts upon which the criteria may be applicable, the court is unable to accept this qualified application. A determination by the ITA in a § 1675(a) review proceeding shall be accepted by the court if the administrative findings are supported by substantial evidence from the record and are not contrary to law. 19 U.S.C. § 1516a(b)(l)(B). The determinative findings of the administering authority must have a rational basis discernible to the court from the evidence in the record. Other" }, { "docid": "18620462", "title": "", "text": "Prods., 6 CIT 155, 572 F. Supp. 883. See 19 C.F.R. § 353.29a). The Diversified Products criteria are as follows: (1) general physical characteristics of the merchandise, (2) expectations of the ultimate purchaser, (3) the channels of trade in which the merchandise moves, (4) the ultimate use of the foreign merchandise, and (5) the cost of that merchandise. Diversified Prods., 6 CIT at 162, 572 F. Supp. at 889. The first of the so-called Diversified Products criteria is the general physical characteristics of the merchandise. As previously stated, in making its determination Commerce relied on Mark’s Handbook which clearly stated that needle bearings “have rollers whose length is at least four times the diameter.” AR (Pub.) Doc. 12. Commerce further determined that the ultimate use of the merchandise and expectations of the ultimate purchaser are dependent upon the physical characteristics of the bearing. AR (Pub.) Doc. 7 at 10. Regarding the channels of trade in which the product is sold, Commerce stated that “we have no reason to believe that the various types of bearings are sold in different channels of trade. The major target for all bearings producers and importers are original equipment manufacturers and distributors.” Id. Upon examining the administrative record in this case and all the evidence on the record including the section from Mark’s Handbook, it is clear to this Court that Commerce was justified in classifying bearing model 15BM2110 as a cylindrical roller bearing. Conclusion In accordance with the foregoing opinion, plaintiffs’ motion for judgment on the agency record is denied as Commerce was justified in classifying bearing model 15BM2110 as a cylindrical roller bearing within the scope of the antidumping order on antifriction bearings from Japan. According to 19 C.F.R. § 353.29(i), [i]n considering whether a particular product is within the class or kind of merchandise described in an existing order, the Secretary will take into account the following: (1) The descriptions of the merchandise contained in the petition, the initial investigation, and the determinations of the Secretary and the Commission. (2) When the above criteria are not dispositive, the Secretary will further consider:" }, { "docid": "9796538", "title": "", "text": "is ambiguous, Commerce must then examine the preliminary and final determinations of LTFV by the International Trade Administration (“ITA”) and material injury by the International Trade Commission («ITC”), any previous ITA notices of initiation of the LTFV investigation and any available ITC publications. See 19 C.F.R. § 353.29(i); see also Koyo Seiko Co. v. United States, 17 CIT 1076, 1079, 834 F.Supp. 1401, 1403-04 (1993); Nitta Indus. Corp. v. United States, 16 CIT 244, 1992 WL 78429 (1992), aff'd, 997 F.2d 1459 (Fed.Cir.1993); American NTN Bearing Mfg. Corp. v. United States, 14 CIT 320, 322, 739 F.Supp. 1555, 1557-58 (1990). If the scope of the particular product is still unclear, Commerce is to look to other criteria, including an analysis of the product’s character under the factors enumerated in Diversified Products. See 19 C.F.R. § 353.29(i); see also Torrington, 16 CIT at 104, 786 F.Supp. at 1025. The application of the Diversified Products criteria is not required for the resolution of the ambiguity but is a legitimate exercise of Commerce’s discretion and authority. American NTN, 14 CIT at 331, 739 F.Supp. at 1565. 1. Commerce’s Decision to Conduct a Diversified Products Analysis a. The 1986 Timken Petition Pursuant to the test set forth by the regulations and case law, Commerce first examined the 1986 Timken Petition to determine whether Koyo’s forgings fall within the scope of the 1987 TRB Order. 1995 Koyo Scope Ruling, 60 Fed.Reg. at 6519-20. In such a scope investigation, where Commerce examines the description of the merchandise contained in the petition, Commerce must give ample deference to the intent of the petitioner. Koyo Seiko, 17 CIT at 1078, 834 F.Supp. at 1403; Torrington, 16 CIT at 105, 786 F.Supp. at 1026. The 1986 Timken Petition included the following merchandise: all tapered roller bearings, tapered rollers and other parts thereof (both finished and unfinished) including, but not limited to, single-row, multiple-row (e.g., two-, four-), and thrust bearings and self-contained bearing packages (generally pre-set, pres-ealed and pre-greased), but only to the extent that such merchandise is not presently covered by an outstanding antidump-ing duty order or finding in" }, { "docid": "18620463", "title": "", "text": "are sold in different channels of trade. The major target for all bearings producers and importers are original equipment manufacturers and distributors.” Id. Upon examining the administrative record in this case and all the evidence on the record including the section from Mark’s Handbook, it is clear to this Court that Commerce was justified in classifying bearing model 15BM2110 as a cylindrical roller bearing. Conclusion In accordance with the foregoing opinion, plaintiffs’ motion for judgment on the agency record is denied as Commerce was justified in classifying bearing model 15BM2110 as a cylindrical roller bearing within the scope of the antidumping order on antifriction bearings from Japan. According to 19 C.F.R. § 353.29(i), [i]n considering whether a particular product is within the class or kind of merchandise described in an existing order, the Secretary will take into account the following: (1) The descriptions of the merchandise contained in the petition, the initial investigation, and the determinations of the Secretary and the Commission. (2) When the above criteria are not dispositive, the Secretary will further consider: (i) The physical characteristics of the product; (ii) The expectations of the ultimate purchasers; (iii) The ultimate use of the product; and (iv) The channels of trade." }, { "docid": "9796579", "title": "", "text": "and future reviews. Conclusion Commerce’s decision to use, and application of, the Diversified Products analysis was supported by substantial evidence on the record and fully in accordance with law. Consequently, Commerce properly found that Koyo’s forgings are within the scope of the 1987 TRB Order. This case is remanded for Commerce to explain a rationale for its decision to apply the 1995 Koyo Scope Ruling only to pending and future reviews. ORDER This case having been duly submitted for a decision and the Court, after due deliberation, having rendered a decision herein; now, in accordance with said decision, it is hereby ORDERED that this case is remanded to the Department of Commerce, International Trade Administration (“Commerce”), to explain a rationale for its decision to apply the Final Affirmative Determination in Scope Inquiry on Antidumping Duty Order on Tapered Roller Bearings and Parts Thereof From Japan, 60 Fed.Reg. 6519 (Feb. 2,1995) to only pending and future reviews; and it is further ORDERED that the remand results are due within ninety (90) days of the date that this opinion is entered. Any comments or responses by the parties to the remand results are due within thirty (30) days thereafter. Any rebuttal comments are due within fifteen (15) days of the date that the responses or comments are due. . The Department of Treasury was responsible for administering the antidumping law until 1979, when this responsibility was transferred to Commerce. . A revised version of 19 C.F.R. § 353.29(i) (1994) (Other Scope Determinations), was promulgated in 1990 to incorporate the factors set forth in Diversified Prods. Corp. v. United States, 6 CIT 155, 572 F.Supp. 883 (1983). The section states, in relevant part: [I]n considering whether a particular product is within the class or kind of merchandise described in an existing order, the Secretary will take into account the following: (1) The descriptions of the merchandise contained in the petition, the initial investigation, and the determinations of the Secretary and the Commission. (2) When the above criteria are not disposi-tive, the Secretary will further consider: (i) The physical characteristics of the product; (ii)" }, { "docid": "6203508", "title": "", "text": "would be unfair to the participants to find that Treasury committed an error in the application of a policy not in existence at the time of the decision. Instead, the lawfulness of Treasury’s post-finding ruling must be assessed under the law and attendant scope determination standards in effect in 1976. First, it appears that in 1976 Treasury applied the same factors in scope determination cases as applied in the classification case United States v. Carborundum Co., 536 F.2d 373, 377 (C.C.P.A.1976). In Kyowa Gas Chemical Industry Co., Ltd. v. United States, 7 CIT 138, 140, 582 F.Supp. 887, 889 (1984), appeal after remand, 7 CIT 311, 1984 WL 3729 (1984), when ordered in a § 751 review to apply the applicable criteria used in antidumping scope determinations, Commerce applied the same criteria as set forth in Carborundum. In footnote 2 of Kyowa Gas, the court noted that even prior to 1984, [i]n determining whether the 1976 anti-dumping finding on Acrylic Sheet from Japan encompassed [a product] ... the Customs Service in 1978 considered these {Carborundum ] criteria ‘essential factors’ to be used as ‘guidelines’ in making rulings on specific products. Id. (emphasis added). It is clear that by 1978, and by inference 1976, that Treasury utilized the same totality of the circumstances test in antidumping scope determinations as set forth in Carborundum. Second, the court notes that the 1976 standards are not identical to the standards applied currently. Specifically, the current threshold test of finding ambiguity in the documentary description of the merchandise as set forth under 19 C.F.R. § 353.29(i)(1) before resorting to Diversified Products or Carborundum type factors is not applicable under the 1976 standards. Neither party cites any support for the proposition that Treasury applied the threshold test in 1976. Moreover, the court in Kyowa Gas implies that Treasury did not apply the threshold test. See 7 CIT at 140, 582 F.Supp. at 889. As late as 1984, the threshold test was considered a recent invention of Commerce, implying that neither Commerce or Treasury had applied this test previously in antidump-ing scope determinations. Id. Specifically, the court" }, { "docid": "6203510", "title": "", "text": "in Kyowa Gas stated: [t]he Department qualifies the utilization of these [Diversified Products] criteria as a standard or test by conditioning their use upon a preliminary finding that the initial product description is “vague.” Neither precedent nor authority has been submitted to substantiate the newly enunciated ITA standard.... The court is unable to accept this qualified application. Id. In addition, it would be impractical to apply today’s threshold test based upon the evidence available in 1976. Under the current law, Commerce analyzes four documents in reaching its determination of whether the merchandise description is dispositive or ambiguous. 19 C.F.R. § 353.29(i)(1). In 1976, out of the four documents only the petition existed. Moreover, in 1976, Treasury did not publish an official definition of stainless steel plate as Commerce would do today; therefore any documents which might be analogous lacked an anchoring description. These facts suggest that Treasury would not have relied upon the petition definition as the dis-positive factor in its antidumping scope determination, but instead it was merely one factor considered under the totality of the circumstances test. Thus, the court remands this matter to Commerce. First, Commerce must apply the 1976 standards to determine whether Treasury erred in its post-finding ruling. In reviewing Treasury’s actions Commerce must interpret ambiguous actions in accordance with the presumption of administrative legality and regularity. More over, at this stage, Commerce may not reweigh the evidence. If a court would find sufficient evidence to sustain Treasury’s decision, so must Commerce. Second, if Treasury erred, Commerce may correct the anti-dumping scope determination by applying the law in effect in 1976. Remand results are due within 45 days hereof. .Commerce issued two letter rulings. The first, dated July 11, 1995, concerned the scope of the 1973 dumping finding on stainless steel plate from Sweden with regard to three products, Stavax, Ramax and UHB 904L, when flat rolled. Stainless Steel Plate from Sweden, (Dep’t Comm. 1995) (final scope ruling and mem., flat rolled products) at 21; Pl.’s App., Ex. 2. The second, dated November 2, 1995, concerned the same 1973 scope finding with regard to the" }, { "docid": "22263492", "title": "", "text": "to have been originally within the scope of the antidumping order.” (emphasis in original). Accordingly, the court denied Commerce’s request for a remand. It also affirmed the Final Scope Determination because the Standard Pipe Orders clearly exclude line and dual-certified pipe. Wheat-land appeals. Discussion In reviewing a decision -by the Court of International Trade to affirm the agency’s final determination, “we ‘apply anew’ the court’s statutorily-mandated standard of review to the administrative review.” Torrington Co. v. United States, 82 F.3d 1039, 1044 (Fed.Cir.1996) (quoting PPG Indus., Inc. v. United States, 978 F.2d 1232, 1236 (Fed.Cir.1992)). Accordingly, we must affirm Commerce’s final determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i) (1994). Substantial evidence supports Commerce’s conclusion that the line and dual-certified pipe accused of circumventing the Standard Pipe Orders is the same pipe that the orders expressly exclude. See Standard Pipe Orders, 57 Fed.Reg. at 49,453. Because the description of the merchandise contained in the initial investigation and the Orders is unambiguous, Commerce was not required to examine the physical characteristics of the accused product, the expectations of the ultimate purchasers, the ultimate use of the accused product, or the channels of trade. See 19 C.F.R. § 353.29(i)(2). Wheatland’s argument that the Orders exclude only line and dual-certified pipe that is actually used as line pipe contradicts the unambiguous language of the Orders, which refer to the pipes’ principal use at the time of entry instead of actual use. See Final Scope Determination, 61 Fed.Reg. at 11,611 (“The phrase ‘of a kind used for’ is commonly used by Customs to signify the chief, or principal, use of a product and not its actual use.”). Wheatland also contradicts its statements during the antidumping investigations that they should cover pipe entering the United States under one of the tariff numbers pertaining to standard pipe and that pipe entering as line pipe would be outside the scope of the petitions. The International Trade Commission’s (ITC) reliance on these statements in conducting its injury analysis makes Wheat-land’s new position especially untenable." } ]

[ { "docid": "13747782", "title": "", "text": "or universities).” 16 C.F.R. pt. 600, app. D § 603(d)(7)(A) (emphasis added). The Federal Trade Commission also issued a Staff Opinion Letter in response to an inquiry from a public school district conducting reference checks of prospective employees. That letter explained “FCRA would not apply to any communication by a previous employer about the applicant’s job performance because [15 U.S.C. § 1681 (d)(2)(A)(I)] specifically exempts ‘experiences between the consumer and the person making the report’ from the definition of ‘consumer report’ in the FCRA.” Staff Opinion Letter from Fed. Trade Comm’n (July 10, 1992), 1998 WL 34328734. The Commentary and Letter are not formal rulemakings and not entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). Such documents, however, may be considered for their persuasive value. Id. That the experiences of the motor carrier may involve third parties does not mean they are no longer the first-hand experiences of the carrier. Employers completing TRFs were asked questions that only pertained to their first-hand knowledge gained by employing the consumer. The TRFs contain the same kind of information found in a typical letter of reference from a former employer and are not subject to the requirements of FCRA. B. Evidence of Industry Practice FCRA requires that “[wjhenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C. § 1681e(b). The Federal Trade Commission has explained “when a consumer reporting agency learns or should reasonably be aware of errors in its reports that may indicate systematic problems ... it must review its procedures for assuring accuracy.” 16 C.F.R. pt. 600, app. D § 607(b)(3)(A). To demonstrate a “willful” violation pursuant to § 1681n(a), a plaintiff must prove the defendant demonstrated a “reckless disregard of statutory duty.” Safeco Ins. Co., 127 S.Ct. at 2208. At trial, the plaintiffs argued the defendants violated FCRA" } ]

[ { "docid": "6509210", "title": "", "text": "Congress did not mean, by repealing the attorney exception, to extend the range of activities proscribed by the FDCPA. The FTC confirmed its position in a letter addressed specifically to Jones, who, concerned about his status under the FDCPA, had directly solicited the FTC’s advice. A staff attorney of the FTC’s Bureau of Consumer Protection, Division of Credit Practices, informed Jones: According to your description of your practice, you initiate collection suits against debtors on behalf of your client and represent your client in any ensuing litigation. You indicate that you engage in no pre-litigation collection efforts on behalf of your client. Attorneys whose practice involves only the kind of legal services traditionally provided by attorneys, not collection activities traditionally performed by debt collectors, are not debt collectors within the meaning of the Act and thus are not subject to the Act’s requirements. J.A. at 297-98 (footnote omitted). We decline to adopt the FTC’s position. Under the teachings of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), “if the statute is silent or ambiguous with respect to the specific issue,” a court should defer to a reasonable administrative interpretation of the statute. Id. at 843, 104 S.Ct. at 2782. As we held above in our discussion of the legislative history, we believe that the plain language of the provision defining “debt collector” for purposes of the FDCPA is unambiguous. The FTC’s interpretation, which would place Jones outside that definition despite the clear evidence that the “principal purpose” of his business is the collection of debt, runs counter to the plain meaning of the statutory language. We cannot defer to an agency interpretation that defeats an express Congressional command. See, e.g., Estate of Thompson v. Commissioner, 864 F.2d 1128, 1134 (4th Cir.1989). Thus, we hold that an attorney performing exclusively legal tasks is not, on that basis alone, precluded from being considered a “debt collector” under the FDCPA. Cf. Crossley v. Lieberman, 868 F.2d 566 (3rd Cir.1989) (holding attorney liable for violation of the FDCPA). III. In sum, we hold" }, { "docid": "9902938", "title": "", "text": "opinion letters stating that certain categories of drivers apparently akin to the appellees in the case at bar were not within the MCA exemption, and were therefore subject to the FLSA’s overtime requirements. The District Court, in turn, relied on one of these DOL letters because the District Court found that the DOT shared the DOL’s interpretation. However, neither the 1974 Benkin letter nor the 1999 Fraser letter the District Court relied on has the formality and weight that would merit judicial deference. Some agency interpretations of statutes the agency administers are entitled to substantial judicial deference. Here, the ACCESS drivers contend that Mr. Benkin’s endorsement of a “through ticketing” test is entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), which requires judicial deference to an agency’s reasonable interpretation of an ambiguous statute entrusted to its administration. However, “[i]nterpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron-style deference.” Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). The informal and cursory Benkin letter falls into this category, and hence does not merit Chevron deference. The Fraser letter would similarly lack authority, even if the DOL had authority to interpret the MCA, which it does not. As this court has said, “[t]o grant Chevron deference to informal agency interpretations would unduly validate the results of an informal process.” Madison, 233 F.3d at 186. In the absence of Chevron deference, the ACCESS drivers contend that the Benkin letter is at least entitled to the lesser degree of deference called for by Skidmore v. Swift, 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). However, Skid-more deference is available only based on an agency interpretation’s power to persuade. The general rule, where Chevron deference is not warranted, is that “[t]he weight of [an agency’s] judgment in a particular case will depend upon the thoroughness evident in its consideration," }, { "docid": "17140758", "title": "", "text": "in March 1995 in response to the failure of Executive Life, the Federal Register notes an effective date for IB-95 of January 1, 1975. See Interpretive Bulletins Relating to the Employee Retirement Income Security Act of 1974 (hereafter “IB-ERISA”), 60 Fed.Reg. 12328, 12328 (1995). According to the Secretary, we owe deference to the interpretation of ERISA’s fiduciary duties expressed in IB-95, see Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and should apply it to RJR’s selection of Executive Life’s annuity. In Christensen v. Harris County, 529 U.S. 576, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000), the Supreme Court rejected an argument that it should give “Chevron deference” to a Department of Labor opinion letter. Noting that such interpretations are not “arrived at after, for example, a formal adjudication or notice-and-comment rulemaking” and “lack the force of law,” id. at 1662, it concluded that interpretations in opinion letters and similar documents are instead “ ‘entitled to respect’ under [its] decision in Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), but only to the extent that those interpretations have the ‘power to persuade’.” Id. at 1663; see also Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 157, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (noting that interpretive rules and enforcement guidelines are “not entitled to the same deference as norms that derive from the exercise of the Secretary’s delegated lawmaking powers.”). IB-95 is a Department of Labor interpretative bulletin that is not the product of notice-and-comment procedures established by the Administrative Procedure Act. See 5 U.S.C. § 553 (1994). Although the Department gave advance notice of proposed rulemaking, see Annuitization of Participants and Beneficiaries Covered Under Employee Pension Plans (hereafter “Annuitization”), 56 Fed.Reg. 28638 (1991), the focus of that notice was not the proper application of § 1104 to a fiduciary’s selection of an annuity provider as part of plan terminations. Instead, the notice described the possibility of amending existing regulations defining the circumstances under which an individual is" }, { "docid": "15072136", "title": "", "text": "not speak directly to the issue of any particular methodology Commerce must employ to value the factors of production, and that discretion was therefore vested in Commerce to develop the details of its methodology.. 23 CIT at ■ — —, 59 F.Supp.2d at 1357. Thereafter, the Court proceeded to examine whether Commerce acted reasonably pursuant to the second step of the Chevron analysis. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Court reserved judgment on the reasonableness of Commerce’s action, and now reviews Commerce’s Remand Determination for that purpose. In the interim, however, the Supreme Court has revisited the issue of how much deference, and in what circumstances, a reviewing court owes to the actions of an executive agency. In Christensen v. Harris County, — U.S. —, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000), the Supreme Court refused to extend Chevron deference (courts must defer to an agency’s interpretive regulation construing an ambiguous statute) to an opinion letter issued by the Department of Labor’s Wage and Hour division because its interpretation of the statute at issue was “not one arrived at after, for example, a formal adjudication or notice-and-comment rulemaking.” Id. Both the majority and dissenting opinions recognized that deference is accorded to agency interpretations embodied in formats other than formal adjudications and notice and comment rulemaking. Courts continue to apply deference based on how persuasive or authoritative the reviewing court finds the agency interpretations when compared to the statutory language. The preliminary question that the Court must answer is whether the Christensen opinion requires a change in the level of deference granted to such agency interpretations. Noting that only the majority opinion is binding, the Court finds that a brief analysis of the majority, concurring, and dissenting opinions is helpful in arriving at an accurate conclusion. The Christensen majority held that “interpretations contained in formats such as opinion letters are ‘entitled to respect’ under our decision in Skidmore v. Swift & Co., 328 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), but only" }, { "docid": "22164462", "title": "", "text": "court in Vasquez concluded, “This opinion should ... not be viewed as an expression of any view as to [the defendant’s] possible liability under the Act.” 937 F.Supp. at 775 n. 1. In short, Vasquez is inapplicable to this case. IV. We therefore conclude that the district court properly granted judgment on the pleadings for Mac Adjustment. The tort obligation at issue in this case does not constitute a “debt” under the plain language of the FDCPA or any of the applicable case law. Accordingly, the judgment of the district court must be, and is, AFFIRMED. . The record contains few facts; consequently, the Court’s statement of the facts is similarly brief, . Although unnecessary to our holding, we note in passing that the legislative history and the Federal Trade Commission's (“FTC”) staff commentary on the FDCPA confirm our reading of the statute. First, considering the legislative history, the Senate Report on the Fair Debt Collection Practices Act expressly defines the scope of the Act as applying \"only to debts contracted by consumers for personal,- family, or household purposes; it has no application to the collection of commercial accounts.” Consumer Credit Protect Act, S.Rep. No. 95-382 (1977), reprinted in 1977 U.S.C.C.A.N. 1695 (emphasis added). Hawthorne's obligation to Mac Adjustment, which arose purely out of an accident, involved no contract of any type between Hawthorne and the damaged party, the insurer, or Mac Adjustment. Likewise, it involved no consumer transaction. Accordingly, it does not constitute the type of obligation that Congress envisioned protecting through the FDCPA. Similarly, the FTC’s staff commentary on the FDCPA supports our understanding of the statute. Congress specifically charged the FTC with enforcement and administration of the FDCPA. See 15 U.S.C. § 16921. Although the FTC’s construction of the FDCPA is not binding on the courts, because the FTC is entrusted with administering the FDCPA, its interpretation should be accorded considerable weight. See Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984). In a notice entitled \"Statements of General Policy or Interpretation, Staff Commentary on the" }, { "docid": "10831846", "title": "", "text": "amended complaint stated a claim of violation of Title IX. We think the plaintiffs are incorrect on each contention. A. Deference to the 1979 Policy Interpretation Consistent with the precedent of this court and various other courts, we conclude that the Policy Interpretation is entitled to deference. Despite the plaintiffs’ assertions to the contrary, the facts in Christensen v. Harris County, 529 U.S. 576, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000), are distinguishable from the facts at issue here. The Christensen court specifically dealt with an interpretation contained in an opinion letter, “not one arrived at after ... a formal adjudication or notice-and-comment rulemaking.” 529 U.S. at 587, 120 S.Ct. 1655. It is clear that the 1979 Policy Interpretation is far more than a mere opinion letter. Before it was published, a formal comment period was held and over 700 comments were received. 44 Fed.Reg. 71,413. HEW staff also visited eight universities to see how the policy would apply in practice. Id. We conclude that the Christensen “respect only” interpretation is not applicable to the Policy Interpretation. Rather, “[b]ecause Congress has not ‘directly spoken to the precise question at issue,’ we must sustain the Secretary’s approach so long as it is ‘based on a permissible construction of the statute.’ ” Auer v. Robbins, 519 U.S. 452, 457, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., et al, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). The regulations and their interpretation should be accorded “controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 844, 104 S.Ct. 2778. We find, based upon our review of the regulations, the Policy Interpretation and established law, that neither the regulations nor the Policy Interpretation are unreasonable, arbitrary, capricious, or manifestly contrary to Title IX. See Chalenor v. Univ. of N. Dakota, 291 F.3d 1042, 1045-47 (8th Cir.2002); Neal v. Bd. of Trustees of the Cal. State Univs., 198 F.3d 763, 769-72 (9th Cir.1999); Boulahanis v. Bd. of Regents, 198 F.3d 633, 637-38 (7th Cir.1999); Horner" }, { "docid": "15370297", "title": "", "text": "supposedly interprets or with that statute’s legislative history or if it is otherwise unreasonable.’ ” CenTra, Inc. v. United States, 953 F.2d 1051, 1056 (6th Cir.1992) (quoting Threlkeld v. Comm’r, 848 F.2d 81, 84 (6th Cir.1988)); see also Johnson City Med. Ctr. v. United States, 999 F.2d 973, 977 (6th Cir.1993) (“[T]his Court accords deference to Revenue Ruling 85-74 under the standard set forth in Chevron [U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)].” ); Wuebker v. Comm’r, 205 F.3d 897, 903 (6th Cir.2000). However, recent Supreme Court decisions limiting the Chevron doctrine have called our earlier cases into question. In Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000), the Supreme Court held that “[i]n-terpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron-style deference.” The Court explained that such agency interpretations are entitled to respect, “but only to the extent that those interpretations have the ‘power to persuade.’ ” Id. (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). In United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), the Supreme Court emphasized that Chevron deference is appropriate only “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority” through “notice- and-comment rulemaking, or by some other indication of a comparable congressional intent.” The Court added that “an agency’s interpretation may merit some deference whatever its form, given the ‘specialized experience and broader investigations and information’ available to the agency, and given the value of uniformity in its administrative and judicial understandings of what a national law requires.” Id. at 234, 121 S.Ct. 2164 (quoting Skidmore, 323 U.S. at 139-40, 65 S.Ct. 161). In United States v. Cleveland Indians Baseball" }, { "docid": "10873312", "title": "", "text": "interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. “The power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 1072, 39 L.Ed.2d 270 (1974). If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regula tions are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (footnotes omitted); see also Bononi v. Bayer Emps. Credit Union (In re Zilka), 407 B.R. 684, 688 (Bankr.W.D.Pa.2009). Nevertheless, an agency’s interpretation of what Congress intended is only entitled to deference when “a statute is ambiguous, and if the implementing agency’s construction is reasonable, ... even if the agency’s reading differs from what the court believes is the best statutory interpretation!;,]” Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 2699, 162 L.Ed.2d 820 (2005), and “[i]nterpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron-style deference. Instead interpretations contained in formats such as opinion letters are ‘entitled to respect’ under our decision in Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), but only to the extent that those interpretations have the ‘power to persuade.’ ” Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 1662, 146 L.Ed.2d 621 (2000) (citations omitted). In this case, the court is not persuaded by the two information letters" }, { "docid": "11511054", "title": "", "text": "n. 203 (citing Committee on Fiduciary Responsibility (Employee Benefits Group), Directed Trusts under ERISA, 12 Real Prop. Prob. & Tr. J. 535, 546-48 (1977)): “Early industry commentators were quick to point out that section 403(a)(1) gave directed trustees no comfort in mechanically following a named fiduciary’s directions.” Ms. Hatamyar also discusses the Department of Labor’s advisory opinions. Id. at 32-335 & nn. 210-230. These opinion letters issued by the Department of Labor have some weight with respect to defining the obligations of directed trustees. The Supreme Court has held that when an agency, authorized by statute to interpret and enforce that statute, construes the statute that it administers, a court must defer to that interpretation if Congress has not spoken directly on the matter and if the agency’s interpretation “is based on a permissible construction of the statute.” Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In Chevron, U.S.A., the Supreme Court further held that a court must defer to a regulation issued after formal adjudication or notice-and-comment rulemaking pursuant to the Administrative Procedure Act by an agency, if the agency’s interpretation of an ambiguous statute contains a reasonable (but not necessarily the most reasonable) interpretation of an ambiguous statute. Id. at 842-44, 104 S.Ct. 2778. See also United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)(“We hold that administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law and that the agency interpretation claiming deference was promulgated in the exercise of that authority.”). Where an agency offers an interpretation that is not the result of formal procedures such as adjudication or notice and comment rule-making, however, as in opinion letters, policy statements, agency manuals, ami-cus curiae briefs, and enforcement guidelines, that interpretation lacks the force of law and does not warrant Chevron-style deference. Christensen v. Harris County, 529 U.S. 576, 586-87, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000)(and cases cited" }, { "docid": "22852471", "title": "", "text": "rule. See id. at 288-91. We rejected the argument, concluding that the agency’s receipt of after-the-fact notice of the nurses’ total hours worked coupled with its failure to take more assertive steps to prevent such overtime work obligated it to pay FLSA overtime. See id. at 290-91. The conclusion applies with even more force in this case. Bellevue cannot demonstrate that Bar-field’s use of multiple agencies deprived it of knowledge of the total hours she worked at the hospital because Bellevue staff specifically approved all hours worked. To the extent Bellevue failed to maintain its work approval records in such a way as to readily identify when temporary nursing assistants worked more than 40 -hours in a given week, that inaction by Bellevue would not permit a factfinder to conclude that it did not “suffer or permit” the overtime work to be performed. Id. at 290-91 (observing that employer who wishes to avoid paying overtime must make efforts to prevent employees from working overtime). Thus, we conclude that defendants’ challenges to summary judgment are uniformly without merit. b. The Department of Labor’s Interpretation of the FLSA Supports Treating Bellevue as Barfield’s Joint Employer In rejecting Bellevue’s challenge to the district court’s joint employer finding, we note that the challenged ruling is, in fact, supported by various opinion letters issued by the Department of Labor (“DOL”), the agency charged with enforcement of the FLSA. Statutory interpretations contained in DOL opinion letters, as opposed to those arrived at after formal agency adjudication or notice-and-eomment rulemaking, are not binding authority, see Gualandi v. Adams, 385 F.3d 236, 243 (2d Cir.2004), and do not command Chevron deference, see Christensen v. Harris County, 529 U.S. 576, 586-87, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (citing Chevron U.S.A. Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Nevertheless, such agency letters represent “a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Gualandi v. Adams, 385 F.3d at 243 (citing Bragdon v. Abbott, 524 U.S. 624, 642, 118 S.Ct. 2196," }, { "docid": "11511055", "title": "", "text": "after formal adjudication or notice-and-comment rulemaking pursuant to the Administrative Procedure Act by an agency, if the agency’s interpretation of an ambiguous statute contains a reasonable (but not necessarily the most reasonable) interpretation of an ambiguous statute. Id. at 842-44, 104 S.Ct. 2778. See also United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)(“We hold that administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law and that the agency interpretation claiming deference was promulgated in the exercise of that authority.”). Where an agency offers an interpretation that is not the result of formal procedures such as adjudication or notice and comment rule-making, however, as in opinion letters, policy statements, agency manuals, ami-cus curiae briefs, and enforcement guidelines, that interpretation lacks the force of law and does not warrant Chevron-style deference. Christensen v. Harris County, 529 U.S. 576, 586-87, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000)(and cases cited therein). Instead the agency’s interpretations are “entitled to respect,” “but only to the extent that those interpretations have the power to persuade.” Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944); Christensen, 529 U.S. at 587, 120 S.Ct. 1655. Indeed such interpretations merit some deference because of the “specialized experience and broader investigations and information,” as well as the importance of uniformity in the agency’s administrative and judicial understanding of what a federal law requires available to the agency. Skidmore, 323 U.S. at 139-40, 65 S.Ct. 161. In sum, The weight [given to an agency’s] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control. Id. at 140, 65 S.Ct. 161. See also Samson v. Apollo Resources, Inc., 242 F.3d 629, 638 (5th Cir.)(“Opinion letters by the Department of Labor do not per se bind the court...." }, { "docid": "15372937", "title": "", "text": "in light of the agency’s disclaimer that its interpretive regulations are not intended to have the force of law, see 42 Fed. Reg. 36111, 36112 (July 13, 1977) (noting that the interpretive regulations \"are not ... substantive rules and do not have the force or effect of statutory provisions” and that “like industry guides, they are advisory in nature”), it appears that these regulations are not entitled to Chevron deference. See Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (“Interpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron — style deference.”). Such interpretive regulations are \"entitled to respect,” but only to the extent that they \"have the power to persuade.” Id. at 587, 120 S.Ct. 1655 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) (internal quotations omitted)). . See supra note 7. . This report appears to be no longer obtainable. . See supra note 2. . The FTC requested comments on its rules and guides interpreting and implementing the MMWA \"as part of its regulatory review program, under which it reviews rules and guides periodically in order to obtain information about the costs and benefits of the rules and guides under review, as well as their regulatory and economic impact.” 64 Fed. Reg. 19700, 19700 (Apr. 22, 1999). “After careful review of the comments received in response\" to its request, the Commission decided to retain the interpretations and rules without change. Id. . It merits notice that the FTC’s justification for its prohibition on binding arbitration in the 1999 regulatory review proceeding is consistent with the rationale that the FTC advanced at the time of its original promulgation of tire legislative regulations. Accordingly, we are not precluded from giving appropriate consideration to the Commission's post-promulgation explanation by the Court’s precedents disapproving deference to \"post-hoc” agency justifications for regulatory interpretations. See, e.g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401" }, { "docid": "20252948", "title": "", "text": "In the FTC’s own words, its Magnuson-Moss interpretations are “advisory in nature,” are not “substantive rules,” and lack “the force or effect of statutory provisions.” 42 Fed.Reg. 36112, 36112 (July 13, 1977). The FTC’s interpretations consequently may not be entitled to full Chevron deference, see Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)), but “an agency’s interpretation may merit some deference whatever its form, given the specialized experience and broader investigations and information available to the agency, and given the value of uniformity in its administrative and judicial understandings of what a national law requires,” United States v. Mead Corp., 533 U.S. 218, 234, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (citations and quotations omitted). We have looked favorably upon these very interpretations in the past, see Waypoint Aviation Servs. Inc. v. Sandel Avionics, Inc., 469 F.3d 1071, 1073 (7th Cir.2006) (citing 16 C.F.R. § 700.1(d)), and we acquiesce to the parties’ requests to consult them here because they have “power to persuade,” Christensen, 529 U.S. at 587, 120 S.Ct. 1655 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). An interpretation’s “power to persuade” is measured by numerous factors, including “the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements.” Skidmore, 323 U.S. at 140, 65 S.Ct. 161; Joseph v. Holder, 579 F.3d 827, 832 (7th Cir.2009); see also Mead, 533 U.S. at 228, 121 S.Ct. 2164 (citing the degree of an agency’s care, consistency, formality, and relative expertise as factors affecting the “fair measure of deference” due). Those factors tilt strongly in favor of deference here. The FTC was responsible for implementing the Act. 15 U.S.C. § 2312(c); see also Carcieri v. Salazar, — U.S. —, — n. 5, 129 S.Ct. 1058, 1065 n. 5, 172 L.Ed.2d 791 (2009) (noting that a commissioner’s responsibilities relating to the implementation of the Indian Reorganization Act of" }, { "docid": "15372936", "title": "", "text": "See Whitman v. Am. Trucking Assocs., Inc., 531 U.S. 457, 481, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). In contrast, the FTC's interpretive rules are not necessarily subject to Chevron deference. See, e.g., Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 157, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (noting that interpretive rules and enforcement guidelines are \"not entitled to the same deference as norms that derive from the exercise of the Secretary's delegated lawmaking powers”). While the FTC’s rules, unlike many interpretive rules, were subject to notice and comment (i.e., the FTC published a notice of the proposed rules in the Federal Register and interested parties were permitted to submit written comments), these interpretations were not subject to the level of public participation mandated by the MMWA's provisions governing the promulgation of regulations. See 15 U.S.C. § 2309 (1994) (noting that to properly prescribe a rule under the MMWA, the Commission must \"give interested persons an opportunity for oral presentations of data, views, and arguments, in addition to written submissions”). Moreover, in light of the agency’s disclaimer that its interpretive regulations are not intended to have the force of law, see 42 Fed. Reg. 36111, 36112 (July 13, 1977) (noting that the interpretive regulations \"are not ... substantive rules and do not have the force or effect of statutory provisions” and that “like industry guides, they are advisory in nature”), it appears that these regulations are not entitled to Chevron deference. See Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (“Interpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron — style deference.”). Such interpretive regulations are \"entitled to respect,” but only to the extent that they \"have the power to persuade.” Id. at 587, 120 S.Ct. 1655 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) (internal quotations omitted)). . See supra note 7. . This report appears" }, { "docid": "2108604", "title": "", "text": "credit report may be obtained in connection with a new business transaction is to determine the consumer’s “eligibility” — i.e., whether the business wishes to undertake a transaction with he consumer. In this regard, we note that the legislative history indicates that Congress intended the “permissible purposes” provisions of the FCRA to cover primarily “eligibility issues” (see, e.g., 116 Cong. Rec. 36,572 (statement of Rep. Sullivan)). FTC Informal Staff Opinion Letter, William Haynes (Mar. 2, 1998); see also FTC Informal Staff Opinion Letter, David Med-ine (Feb. 11,1998). In another case, the FTC considered an argument somewhat analogous to this one, where a landlord sought to obtain a credit report in connection with a tenant’s disputed debt. The FTC responded that § 604(a)(3)(F)(i) would certainly permit a landlord to procure a consumer report to evaluate a consumer’s rental application (that is, when the lease “transaction ... is initiated by the consumer.”) FTC Informal Staff opinion Letter, Clarke Brincker-hoff (July 7, 2000). However, the FTC noted, § 604(a)(3)(F)® “does not give any business the right to obtain a report on a customer long after the transaction commenced.” “While these administrative interpretations are not products of formal rulemak-ing, they nevertheless warrant respect in closing the door on any suggestion that the usual rules of statutory construction should get short shrift for the sake of reading [‘legitimate business need’] in abstract breadth.” Washington State Department of Social & Health Service, v. Keffeler, 537 U.S. 371, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003); see also Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (holding that “interpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron-style deference”); United States v. Mead Corp., 533 U.S. 218, 228, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (noting that administrative decisions not subject to Chevron deference may be entitled to a lesser degree of deference and that, following Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89" }, { "docid": "7569310", "title": "", "text": "v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). In Chevron, the Supreme Court held that courts must apply a two-pronged analysis to an agency’s interpretation of a statute that the agency has responsibility for administering. Chevron, 467 U.S. at 842-44, 104 S.Ct. 2778. First, if the meaning of the statute is plain and not ambiguous, that meaning must be applied. Second, if the statute is ambiguous, the agency’s interpretation is accorded deference if the agency’s interpretation is reasonable. Id. However, “[i]nterpretations such as those in opinion letters-like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law-do not warrant Chevron-style deference.” Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). In this instance, both parties concede that the term “material difference” is ambiguous as applied to the facts at hand. Thus, the first prong of Chevron does not apply. Moreover, the second prong of the Chevron doctrine is not applicable because HUD’s interpretation expressed in Notice 95-12 does not have the binding legal force of a regulation. Compare America Online, Inc. v. United States, 64 Fed.Cl. 571, 580 (2005), with Cuyahoga II, 65 Fed.Cl. at 549-53. Interpretations such as those in HUD’s Notice 95-12 “ ‘are entitled to respect,’ ... but only to the extent that those interpretations have the ‘power to persuade.’ ” Christensen, 529 U.S. at 587, 120 S.Ct. 1655 (quoting Skidmore, 323 U.S. at 140, 65 S.Ct. 161). This limited form of deference, denominated “Skidmore deference,” considers “‘the thoroughness evident in [the agency interpretation’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.’ ” United States v. Mead Corp., 533 U.S. 218, 228, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (quoting Skidmore, 323 U.S. at 140, 65 S.Ct. 161). Importantly, “[a]n agency interpretation of a relevant provision which conflicts" }, { "docid": "2108605", "title": "", "text": "a report on a customer long after the transaction commenced.” “While these administrative interpretations are not products of formal rulemak-ing, they nevertheless warrant respect in closing the door on any suggestion that the usual rules of statutory construction should get short shrift for the sake of reading [‘legitimate business need’] in abstract breadth.” Washington State Department of Social & Health Service, v. Keffeler, 537 U.S. 371, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003); see also Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (holding that “interpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron-style deference”); United States v. Mead Corp., 533 U.S. 218, 228, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (noting that administrative decisions not subject to Chevron deference may be entitled to a lesser degree of deference and that, following Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), the agency position should be followed to the extent persuasive). In this case, the FTC’s repeated assertions that § 604(a)(3)(F)® primarily pertains to “eligibility” issues and does not create a unilateral right to look at someone’s credit report seems entirely consistent with the statutory language. The FTC has given the scope of § 604(a)(3)(F)® thorough consideration. Its views are certainly persuasive. Moreover, nearly every federal court addressing this issue has similarly held that the “legitimate business need” permissible purpose should be narrowly construed in the context of the other five enumerated purposes. See, e.g., Williams v. AT & T Wireless Services., Inc., 5 F.Supp.2d 1142 (W.D.Wa.1998); Trans Union Corp. v. FTC, 81 F.3d 228, 233-34 (D.C.Cir.1996); Duncan, 149 F.3d at 427; Mone v. Dranow, 945 F.2d 306 (9th Cir.1991); Ippolito v. WNS, Inc., 864 F.2d 440 (7th Cir.1988); Hovater v. Equifax, Inc., 823 F.2d 413 (11th Cir.1987); Houghton v. New Jersey Mfrs. Ins. Co., 795 F.2d 1144, 1149 (3rd Cir.1986). Bearing this principle in mind, the D.C. Circuit noted in the context" }, { "docid": "22852472", "title": "", "text": "without merit. b. The Department of Labor’s Interpretation of the FLSA Supports Treating Bellevue as Barfield’s Joint Employer In rejecting Bellevue’s challenge to the district court’s joint employer finding, we note that the challenged ruling is, in fact, supported by various opinion letters issued by the Department of Labor (“DOL”), the agency charged with enforcement of the FLSA. Statutory interpretations contained in DOL opinion letters, as opposed to those arrived at after formal agency adjudication or notice-and-eomment rulemaking, are not binding authority, see Gualandi v. Adams, 385 F.3d 236, 243 (2d Cir.2004), and do not command Chevron deference, see Christensen v. Harris County, 529 U.S. 576, 586-87, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (citing Chevron U.S.A. Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Nevertheless, such agency letters represent “a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Gualandi v. Adams, 385 F.3d at 243 (citing Bragdon v. Abbott, 524 U.S. 624, 642, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998)). Thus, this court has “often relied on DOL Opinion Letters for their persuasive value.” Id. Like this court, the DOL views joint employment as a question to be resolved from the totality of the evidence. See generally Opinion Letter from Dep’t of Labor, Wage & Hour Div., 2001 WL 1558966, at *1 (May 11, 2001) (identifying relevant factors to include (1) power to control or supervise workers or work performed; (2) power, whether alone or jointly, directly or indirectly, to hire, fire, or modify employment conditions of individual; (3) permanency and duration of relationship; (4) level of skill involved; (5) whether worker’s activities are integral part of overall business operations; (6) where work is performed and what equipment is used; and (7) who performs payroll and similar functions). In a case somewhat analogous to the one before us, the DOL considered whether a residential nursing facility that operated a home health care program to provide companion services for its outpatients through various referral agencies qualified as a joint employer with the" }, { "docid": "12972140", "title": "", "text": "“Rooker declaration”) that the Rooker letter states the current position of the FPCO regarding the grading practice. On appeal, Falvo contends the district court both improperly deferred to the interpretation in the Rooker letter and Rooker declaration and misconstrued the statute. This court agrees with both of these contentions and thus concludes that the district court erroneously determined the term “education records” within FERPA does not encompass the grades at issue here. The district court erred in granting deference to the Rooker letter and declaration for two reasons. First, as discussed infra, the meaning of the terms “education records” and “maintain” are clear from the statute itself, and a court can only defer to an agency’s interpretation if a statute is deemed ambiguous. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-4, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (holding that when a court is asked to construe an ambiguous statute, it must defer to the interpretation set out in a regulation promulgated by the agency charged with administering the statute, so long as the agency’s interpretation is reasonable). Second, even if the relevant statutory language was ambiguous, the Supreme Court recently announced that Chevron deference does not extend to an interpretation contained in an opinion letter issued by the administering agency. See Christensen v. Harris County, 529 U.S. 576, 120 S.Ct. 1655, 1662, 146 L.Ed.2d 621 (2000). The district court thus erred in affording Chevron deference to the Rooker letter and declaration. The Supreme Court did state, however, that interpretations contained in agency opinion letters “are ‘entitled to respect’ under our decision in Skidmore v. Swift & Co., 823 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944).” Christensen, 120 S.Ct. at 1663. In Skidmore, the Court earlier stated that the weight which a court should afford such non-binding agency interpretations “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” 323 U.S. at 140, 65 S.Ct." }, { "docid": "20252947", "title": "", "text": "a “consumer product” is thus crucial to the resolution of this case. In making that determination, we look first to the definition of “consumer product” provided in the Magnuson-Moss Warranty Act. See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). The definition, “any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes (including any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed),” 15 U.S.C. § 2301(1), is on its face expansive but the extent of its intended scope is somewhat hazy. To clarify the meaning of § 2301 and other provisions, the FTC, in connection with its authority to implement the Act, see 15 U.S.C. § 2312(c), issued “interpretations” in 1977 via notice-and-comment procedures, see 42 Fed.Reg. 36112, 36112 (July 13, 1977). The interpretations are codified at 16 C.F.R. § 700.1, and both Miller and the appellees direct our attention to them. In the FTC’s own words, its Magnuson-Moss interpretations are “advisory in nature,” are not “substantive rules,” and lack “the force or effect of statutory provisions.” 42 Fed.Reg. 36112, 36112 (July 13, 1977). The FTC’s interpretations consequently may not be entitled to full Chevron deference, see Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)), but “an agency’s interpretation may merit some deference whatever its form, given the specialized experience and broader investigations and information available to the agency, and given the value of uniformity in its administrative and judicial understandings of what a national law requires,” United States v. Mead Corp., 533 U.S. 218, 234, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (citations and quotations omitted). We have looked favorably upon these very interpretations in the past, see Waypoint Aviation Servs. Inc. v. Sandel Avionics, Inc., 469 F.3d 1071, 1073 (7th Cir.2006) (citing 16 C.F.R. § 700.1(d)), and we" } ]

[ { "docid": "8432440", "title": "", "text": "different factors comes down against imposing a waiver of the defendants’ attorney-client privilege and work-product protection. The court, therefore, sets aside the magistrate judge’s orders of March 30, 1995, and June 12, 1995. Be cause of the broad discretion that resides with the magistrate judge to manage the pretrial docket and to control discovery, the court is quite reluctant to enter this order. Were it not for the critical facts that the defendants faced an extraordinary burden in producing the documents to satisfy the plaintiff’s broad request and the expedited discovery schedule and that the waiver poses a serious litigation risk to the defendants in other cases that have been or are likely to be filed, the court would summarily affirm the magistrate judge’s decision. This ruling plainly complicates the current trial schedule. Despite the advanced stages of this case, the court does not want to prevent the plaintiff from bringing any substantial challenges to the documents found on the defendants’ first and amended privilege logs. The court directs the parties to meet immediately and confer over the defendant’s privilege logs in an effort to agree on whether the privilege objections should stand and, if so, whether the asserted privilege outweighs the plaintiffs need for the information. If an agreement cannot be reached, the parties shall contact the court by a conference call to see what arrangements can be reached for promptly resolving the disputed objections. IT IS THEREFORE ORDERED that the defendants’ objections (Dk. 178) and request for reconsideration (Dk. 109) are granted, and the magistrate judge’s orders filed June 12, 1995, (Dk. 156) and March 30, 1995 (Dk. 100) are set aside. . The plaintiff likewise failed to disclose on it’s privilege list provided on March 6, 1995, whether the claim was attorney-client privilege or the work-product doctrine. (Dk. 51, Ex. 2). . \"Rule 34 does not by its terms provide that objections will be deemed waived; rather, a waiver appears to be more in the nature of a sanction for more egregious conduct.” Scaturro v. Warren and Sweat Mfg. Co., Inc., 160 F.R.D. 44, 46 (M.D.Pa.1995). ." } ]

[ { "docid": "7784317", "title": "", "text": "England (the “Guildford objection”). The Depository was established in response to a parallel action filed against the same defendants by the State of Minnesota and contains'over one million documents. State of Minnesota v. Philip Morris, Inc., No. C1-94-8565 (Minn.Super.Ct.1994). BATCo also objected to producing any documents in the possession of third parties if the documents were not also in BATCo’s possession, custody, or control (the “third-party objection”). In March 2002, the Supreme Court of Victoria, Australia, publicly released a decision regarding discovery in a case involving W.D. & H.O. Wills (“Wills”), an Australian subsidiary of British American Tobacco Australia Services Limited (“BA-TAS”), in which BATCo has a minority ownership interest. McCabe v. Brit. Am. Tobacco Austl. Servs., Ltd., (2002) V.R. 73. The decision quotes extensively from a March 1990 memorandum prepared for Wills by an attorney at the British law firm Lovell, White & Durrant (“Lovell”), in its capacity as counsel for Wills and BATCo (the “Foyle Memorandum” or “the memo”). See id. The Foyle Memorandum advises Wills on modifying its document retention policy in light of increasing litigation against tobacco companies in the United States and Australia. Subsequent to the McCabe decision’s release, the government requested by letter that BATCo produce the Foyle Memorandum. BATCo responded that it had been “unable to locate the document[], or any evidence that plaintiff selected [it] for production.” On May 28, 2002, during the deposition of former BATCo CEO Ulrich Herter, government counsel requested the “immediate production” of the Foyle Memoran dum so it could be used to refresh Herter’s recollection. When BATCo’s counsel declined, government counsel initiated an emergency teleconference with the district court to determine whether BATCo was required to immediately produce the Foyle Memorandum. During the teleconference, BATCo contended that the document was covered by the Guildford objection and informed the Court that it did not even know if the document was in its possession. Moreover, BATCo argued that the Foyle Memorandum was protected by the attorney-client privilege. The district court did not address BATCo’s Guildford and third-party objections. Instead, the court ruled that BATCo had waived any claim of" }, { "docid": "15371053", "title": "", "text": "Wright et al., Federal PRACTICE AND PROCEDURE § 2016.1 (2d ed.1994). Rule 26(b)(5) requires the party to note its privilege objection and to describe the document only when the document is “otherwise discoverable.” This means, as the 1993 Advisory Committee Notes to Rule 26(b)(5) explain, that if a broad discovery request includes an allegedly privileged document, and if there is an objection to the scope of the request, the court should first decide whether the objection covers the document. If the court finds that the document is within the scope of the objection, and the court overrules the objection, it must then give the party an opportunity to list the document on a privilege log pursuant to Rule 26(b)(5). “In short, if a party’s pending objections apply to allegedly privileged documents, the party need not log the document until the court rules on its objections.” Philip Morris, 314 F.3d at 621. On the other hand, if the court determines that the objection does not cover the allegedly privileged document, or that the objection was not made in good faith as Rule 26(g) requires (Fed.R.Civ.P. 26(g)), the court may then decide whether the party should be deemed to have waived the privilege. Waiver is not automatic, particularly if the party reasonably believed that its objections applied to the document. “As the federal rules, case law and commentators suggest, waiver of a privilege is a serious sanction most suitable for cases of unjustified delay, inexcusable conduct, and bad faith.” First Sav. Bank, F.S.B. v. First Bank Sys., Inc., 902 F.Supp. 1356, 1361 (D.Kan.1995); see 8 Charles Alan Wright et al., supra, at 234-35. BATCo presents three objections that, it claims, covered the Foyle Memorandum. Two are mentioned above: the Guildford objection and the third-party objection. The third is what we shall call the foreign objection: BATCo objected to producing documents “pertaining to the manufacture, advertising, marketing, promotion or sale of tobacco products not sold in the United States or activities of any kind undertaken for markets outside the United States.” During the emergency teleconference, BATCo specifically mentioned only its Guildford objection. The" }, { "docid": "23415333", "title": "", "text": "aware in order not to have to disclose such information and threaten its litigation.” United States v. Philip Morris, No. l:99-cv-2496 (D.D.C. Feb. 23, 2004) (order #499 adopting Report & Rec. # 146). The Special Master further noted that BATCo’s participation in this fraud was engineered by routing documents to B & W through outside attorneys rather than to B & W itself. United States v. Philip Morris, No. 1:99-cv-2496 (D.D.C. Feb. 5, 2004) (Report & Rec. # 146 at 79, adopted by order # 499). 4023. Again in this case, the Special Master, in Report & Recommendation # 155, concluded that: legal advice was sought (“Foyle ... wrote a memorandum about the Document Retention Policy describing what he found, and effectively inviting Clayton Utz to go back to the drawing board and destroy more documents”), legal advice was given (“Wilson ... proposed a strategy for handling the documents issue ... its purpose was to get rid of all the sensitive documents, but do so under the guise of an innocent house keeping arrangement ... ”), and legal advice was followed (“Cannar ordered that Wills adopt the strategy proposed by Wilson”). United States v. Philip Morris, No. 1:99-cv-2496 (D.D.C. April 14, 2004) (Report & Rec. # 155 at 40-41, quoting Gulson Aff. at ¶¶ 20, 21, 27). The Special Master further concluded that there was credible evidence to show that counsel was consulted with the intent “to destroy, create privilege over, or remove from the company’s control, documents belonging to [Wills’s] overseas affiliates” in order “to get rid of everything that was damaging in a way that would not rebound on the company or the BAT group as a whole.” Id. at 41 (quoting Gulson Aff. at ¶¶ 24, 25). 4024. In April 1997, the Florida Circuit Court upheld a special master’s ruling that lawyers for Defendants American, Reynolds, B & W, BATCo, Philip Morris, Liggett, Lorillard, CTR, and the Tobacco Institute “undertook to misuse the attorney/client relationship to keep secret research and other activities related to the true health dangers of smoking.” Florida v. American Tobacco, Civ. Action No." }, { "docid": "3739059", "title": "", "text": "section 1962(c) and (d) of the Act. Those subsections make it unlawful for “any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity” or to conspire to do so. 18 U.S.C. § 1962(c), (d). The eleven Defendants were Philip Morris, Inc., now Philip Morris USA, Inc. (“Philip Morris”); R.J. Reynolds Tobacco Company, now Reynolds American (“Reynolds”); Brown & Williamson Tobacco Company, now part of Reynolds (“Brown & Williamson”); Lorillard Tobacco Company (“Lorillard”); The Liggett Group, Inc. (“Liggett”); American Tobacco Company, which merged with Brown & Williamson and is now part of Reynolds (“American”); Philip Morris Companies, now Altria (“Altria”); British American Tobacco (Investments) Ltd. (“BATCo”); B.A.T. Industries p.l.c., now part of BATCo (“BAT Industries”); The Council for Tobacco Research — USA, Inc. (“CTR”); and The Tobacco Institute, Inc. (“TI”). The last two entities are trade organizations the cigarette manufacturers created; they do not manufacture or sell tobacco products. The district court dismissed BAT Industries from the case for lack of personal jurisdiction. ■ The government alleged that Defendants violated and continued to violate RICO by joining together in a decades- long conspiracy to deceive the American public about the health effects and addictiveness of smoking cigarettes. Specifically, the government alleged that Defendants fraudulently denied that smoking causes cancer and emphysema, that secondhand smoke causes lung cancer and endangers children’s respiratory and auditory systems, that nicotine is an addictive drug and Defendants manipulated it to sustain addiction, that light arid low tar cigarettes are not less harmful than full flavor cigarettes, and that Defendants intentionally marketed to youth. United States v. Philip Morris USA, Inc., 449 F.Supp.2d 1, 27 (D.D.C.2006). In addition, the government alleged that Defendants concealed evidence and destroyed documents to hide the dangers of smoking and protect themselves in litigation. Id. The government identified 148 racketeering acts of mail and wire fraud Defendants allegedly committed in furtherance of their scheme. Although the district court did not allow" }, { "docid": "15371048", "title": "", "text": "million documents. State of Minnesota v. Philip Morris, Inc., No. C1-94-8565 (Minn.Super.Ct.1994). BATCo also objected to producing any documents in the possession of third parties if the documents were not also in BATCo’s possession, custody, or control (the ‘third-party objection’). “In March 2002, the Supreme Court of Victoria, Australia, publicly released a decision regarding discovery in a case involving W.D. & H.O. Wills (‘Wills’), an Australian subsidiary of British American Tobacco Australia Services Limited(‘BA-TAS’), in which BATCo has a minority ownership interest. McCabe v. Brit. Am. Tobacco Austl. Servs., Ltd., (2002) V.R. 73. The decision quotes extensively from a March 1990 memorandum prepared for Wills by an attorney at the British law firm Lovell, White & Durrant (‘Lovell’), in its capacity as counsel for Wills and BAT-Co (the ‘Foyle Memorandum’ or ‘the memo’). See id. The Foyle Memorandum advises Wills on modifying its document retention policy in light of increasing litigation against tobacco companies in the United States and Australia. “Subsequent to the McCabe decision’s release, the government requested by letter that BATCo produce the Foyle Memorandum. BATCo responded that it had been ‘unable to locate the document[ ], or any evidence that plaintiff selected [it] for production.’ “On May 28, 2002, during the deposition of former BATCo CEO Ulrich Herter, government counsel requested the ‘immediate production’ of the Foyle Memorandum so it could be used to refresh Herter’s recollection. When BATCo’s counsel declined, government counsel initiated an emergency teleconference with the district court to determine whether BATCo was required to immediately produce the Foyle Memorandum. During the teleconference, BATCo contended that the document was covered by the Guildford objection and informed the Court that it did not even know if the document was in its possession. Moreover, BATCo argued that the Foyle Memorandum was protected by the attorney-client privilege. The district court did not address BATCo’s Guildford and third-party objections. Instead, the court ruled that BATCo had waived any claim of attorney-client privilege because the memo had not been listed in BATCo’s privilege log. The court added that BAT-Co was free to re-litigate the underlying facts of the order" }, { "docid": "23413989", "title": "", "text": "[T]he presence of ammonia compounds in cigarettes does not support Dr. Kessler’s allegation that cigarette companies manipulate nicotine levels to “addict” their customers. 2076733633-3633 (U.S. 43887). 1734. In a June 14, 1995, letter to the editor of The New York Times, written by James Morgan, then President and CEO of Philip Morris, criticizing an article that The Times had published regarding Philip Morris’s research and marketing practices, Morgan claimed that “basic research regarding ‘tar’ and nicotine ratios was never used in the company’s manufacturing processes to alter, much less ‘manipulate,’ the natural ratio of ‘tar’ to nicotine in the cigarettes the company sells.” 2505560444-0447 at 0445 (U.S. 86934). 1735. An October 18, 1995 Philip Morris press release stated, in part, that “Philip Morris U.S.A. does not use ammonia in the cigarette manufacturing process to increase the amount of nicotine inhaled by the smoker or to ‘affect the rate of absorption of nicotine in to [sic] the bloodstream of the smoker,’ or to ‘increase the potency of the nicotine a smoker actually inhales.’ ” 2076733634-3634 (U.S. 43888). 1736. Defendants have also prepared internal “talking points” documents to prepare their spokespersons for public comment on important smoking and health issues. For example, on July 8, 1994, Christopher Proctor sent to all General Managers, BAT Corporate Affairs Managers, and BATCo Board members a memorandum including “Questions and Answers related to U.S. hearings.” Recipients were told to use the materials in response to questions from media and staff. Regarding nicotine, BATCo’s response was that “BAT does not ‘manipulate’ the level of nicotine in its products.” Recipients were also instructed to respond to ques tions regarding addiction that “BAT does not ‘spike’ its tobaccos with nicotine. Smoking is not an addiction.” 800335882-5886 at 5884 (U.S. 31906). 1737. B & W issued a press release in 1994 that stated: “B & W does nothing in the manufacture of its tobacco products that increases the level of nicotine above that which is naturally found in the tobacco plant, nor does it artificially increase nicotine.” 202337394-7394 (U.S. 21965). 1738. In a June 1994 article, BAT spokesman Ralph Edmonson" }, { "docid": "3739058", "title": "", "text": "Opinion for the Court filed PER CURIAM. PER CURIAM: Defendants in this action, cigarette manufacturers and trade organizations, appeal from the district court’s judgment finding them liable for conducting the affairs of their joint enterprise through a pattern of mail and wire fraud in a scheme to deceive American consumers. They also appeal from the district court’s remedial order, which imposes numerous negative and affirmative duties on Defendants. The government and intervenors cross-appeal from the district court’s denial of additional requested remedies. After considering all of the parties’ arguments, we affirm in large part the finding of liability, remanding only for dismissal of the trade organizations. We also largely affirm the remedial order, including the denial of additional remedies, but vacate the order with regard to four discrete issues, remanding for further proceedings as directed in this opinion. I. Background The United States initiated this civil action under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, in 1999. The government alleged that nine cigarette manufacturers and two tobacco-related trade organizations violated section 1962(c) and (d) of the Act. Those subsections make it unlawful for “any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity” or to conspire to do so. 18 U.S.C. § 1962(c), (d). The eleven Defendants were Philip Morris, Inc., now Philip Morris USA, Inc. (“Philip Morris”); R.J. Reynolds Tobacco Company, now Reynolds American (“Reynolds”); Brown & Williamson Tobacco Company, now part of Reynolds (“Brown & Williamson”); Lorillard Tobacco Company (“Lorillard”); The Liggett Group, Inc. (“Liggett”); American Tobacco Company, which merged with Brown & Williamson and is now part of Reynolds (“American”); Philip Morris Companies, now Altria (“Altria”); British American Tobacco (Investments) Ltd. (“BATCo”); B.A.T. Industries p.l.c., now part of BATCo (“BAT Industries”); The Council for Tobacco Research — USA, Inc. (“CTR”); and The Tobacco Institute, Inc. (“TI”). The last two entities are trade organizations the cigarette manufacturers created; they do not manufacture" }, { "docid": "7784315", "title": "", "text": "Opinion for the Court filed by Circuit Judge SENTELLE.' Dissenting opinion filed by Circuit Judge RANDOLPH. SENTELLE, Circuit Judge: British American Tobacco (Investments) Ltd. (“BATCo”), seeks an emergency stay pending expedited appeal of the district court’s discovery orders requiring BATCo to produce an allegedly privileged document. In the alternative, BATCo seeks a writ of mandamus vacating the orders. BATCo contends that this Court has jurisdiction over its appeal under the collateral order doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). On the merits, BATCo argues that the district court erred by ruling that BATCo waived the attorney-client privilege, without first considering BATCo’s pending objections to the request for the allegedly privileged document. Because we agree that BATCo has demonstrated jurisdiction under the collateral order doctrine and satisfied the requirements for a stay, we grant its motion for a stay and dismiss the petition for mandamus as moot. I. Background Appellee, the United States of America, initiated this lawsuit against BATCo and five other tobacco companies in September 1999 alleging that defendants violated the civil provisions of RICO, 18 U.S.C. §§ 1961-68 (2000), by engaging in “a pattern of racketeering activity” to “conceal the health risks of cigarette smoking and the addictiveness of nicotine.” The government further alleges, in relevant part, that defendants have “destroy[ed] and eon-eeal[ed] documents” and taken “other steps to shield documents and materials from discovery.” As to remedy, the government seeks, inter alia, disgorgement of defendants’ profits and recovery of the medical costs of the tobacco companies’ customers. The parties exchanged Comprehensive Requests for Production on August 22, 2000. The government requested that the defendants produce “[a]ll documents relating to record-creating, record-keeping, record-retention, record dissemination or distribution, and/or record-destruction policies, practices, and procedures ... in any part of your organization that has or had responsibility for ... research concerning smoking and health or addiction.” On November 6, 2000, BATCo responded to the government’s document requests, and objected, inter alia, to producing any documents created prior to August 19, 1994, except those contained in the Guildford Depository in" }, { "docid": "17933036", "title": "", "text": "MEMORANDUM OPINION GLADYS KESSLER, District Judge. This civil action brought by the United States under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, is now before the Court on Plaintiffs Motion to Compel Defendant British American Tobacco (Investments) Limited’s (“BATCo’s”) Compliance [Dkt. No. 5847] and Defendant BATCo’s Motion for Reconsideration [Dkt. No. 5849]. Upon consideration of the respective Motions, Oppositions, Replies, and the entire record herein, and for the reasons stated below, Plaintiffs Motion to Compel is granted in part and denied in part and Defendant BATCo’s Motion for Reconsideration is granted in part and denied in part. I. BACKGROUND On August 17, 2006, this Court issued a lengthy opinion finding that all Defendants, including BATCo, “(1) have conspired together to violate the substantive provisions of RICO, pursuant to 18 U.S.C. § 1962(d), and (2) have in fact violated those provisions of the statute, pursuant to 18 U.S.C. § 1962(c).” U.S. v. Philip Morris USA Inc., et al., 449 F.Supp.2d 1, 26 (D.D.C.2006). In particular, the Court held that Defendants “knowingly and intentionally engaged in a scheme to defraud smokers and potential smokers, for purposes of financial gain, by making false and fraudulent statements, representations, and promises.” Id. at 852. On May 22, 2009, the Court of Appeals for the District of Columbia Circuit affirmed this Court’s judgment of liability and affirmed major provisions in its remedial order. U.S. v. Philip Morris USA Inc., et al., 566 F.3d 1095, 1150 (D.C.Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 3501, 177 L.Ed.2d 1090 (2010). Unlike the other Defendants, BATCo is a corporation organized under the laws of England and Wales with its principal place of business in England. Although BAT-Co’s scientists and officials did attend certain meetings with the other Defendants in the United States, “many of BATCo’s activities and statements took place outside of the United States.” Philip Morris, 449 F.Supp.2d at 43, 51-52, 82, 125, 228, 873. Accordingly, this Court held BATCo liable under RICO because “BATCo’s activities and statements furthered the Enterprise’s overall scheme to defraud, which had a tremendous impact on the United" }, { "docid": "18156968", "title": "", "text": "Opinion for the Court filed by Chief Judge SENTELLE. SENTELLE, Chief Judge: Appellant tobacco companies seek review of a district court order clarifying an injunction requiring appellants to disclose marketing data to the government. Appellants claim that the clarification of the injunction actually effects a modification of the requirements. Our jurisdiction over this interlocutory appeal is dependent on the district court having modified the injunction. Because we conclude that it did not, we dismiss the appeal for lack of jurisdiction. I. In 1999, the United States brought a civil action against appellants under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968. Alleging that the tobacco companies had engaged in a decades-long conspiracy to “deceive the American public about the health effects of smoking,” the government sought disgorgement of profits and injunctive relief under 18 U.S.C. § 1964. First Am. Compl. at ¶ 3, United States v. Philip Morris USA, Inc., 449 F.Supp.2d 1 (D.D.C.2006) (No. 99-cv-2496, ECF No. 274). In 2006, after this Court ruled that disgorgement was not an available remedy under the statute, see United States v. Philip Morris USA, Inc., 396 F.3d 1190 (D.C.Cir.2005), the district court issued Order # 1015, which granted injunctive relief against the tobacco companies in order to prevent future RICO violations. See United States v. Philip Morris USA, Inc., 449 F.Supp.2d 1 (D.D.C.2006) (Order # 1015). On appeal, we largely affirmed the district court’s decision, vacating and remanding only with regard to a handful of peripheral issues not relevant to this appeal. See United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1150 (D.C.Cir.2009). Some of those issues are still before the district court on remand. The injunction included provisions requiring appellants to make disclosure to the government of various marketing data: 16. Each Defendant shall be required to disclose all disaggregated marketing data to the Government in the same form and on the same schedule which Defendants now follow in disclosing disaggregated marketing data to the Federal Trade Commission. Defendants must disclose such data to the Government for a period of ten years from the date" }, { "docid": "7784316", "title": "", "text": "in September 1999 alleging that defendants violated the civil provisions of RICO, 18 U.S.C. §§ 1961-68 (2000), by engaging in “a pattern of racketeering activity” to “conceal the health risks of cigarette smoking and the addictiveness of nicotine.” The government further alleges, in relevant part, that defendants have “destroy[ed] and eon-eeal[ed] documents” and taken “other steps to shield documents and materials from discovery.” As to remedy, the government seeks, inter alia, disgorgement of defendants’ profits and recovery of the medical costs of the tobacco companies’ customers. The parties exchanged Comprehensive Requests for Production on August 22, 2000. The government requested that the defendants produce “[a]ll documents relating to record-creating, record-keeping, record-retention, record dissemination or distribution, and/or record-destruction policies, practices, and procedures ... in any part of your organization that has or had responsibility for ... research concerning smoking and health or addiction.” On November 6, 2000, BATCo responded to the government’s document requests, and objected, inter alia, to producing any documents created prior to August 19, 1994, except those contained in the Guildford Depository in England (the “Guildford objection”). The Depository was established in response to a parallel action filed against the same defendants by the State of Minnesota and contains'over one million documents. State of Minnesota v. Philip Morris, Inc., No. C1-94-8565 (Minn.Super.Ct.1994). BATCo also objected to producing any documents in the possession of third parties if the documents were not also in BATCo’s possession, custody, or control (the “third-party objection”). In March 2002, the Supreme Court of Victoria, Australia, publicly released a decision regarding discovery in a case involving W.D. & H.O. Wills (“Wills”), an Australian subsidiary of British American Tobacco Australia Services Limited (“BA-TAS”), in which BATCo has a minority ownership interest. McCabe v. Brit. Am. Tobacco Austl. Servs., Ltd., (2002) V.R. 73. The decision quotes extensively from a March 1990 memorandum prepared for Wills by an attorney at the British law firm Lovell, White & Durrant (“Lovell”), in its capacity as counsel for Wills and BATCo (the “Foyle Memorandum” or “the memo”). See id. The Foyle Memorandum advises Wills on modifying its document retention policy in" }, { "docid": "1969434", "title": "", "text": "Opinion for the Court filed by Circuit Judge TATEL. TATEL, Circuit Judge: In this appeal, the fifth in this long-running RICO case against the nation’s cigarette manufacturers, defendants challenge a district court order requiring that they add two statements to their cigarette packages and advertisements: an announcement that a federal court has ruled that they “deliberately deceived the American public” about the dangers of cigarettes; and a declaration that they “intentionally designed cigarettes” to maximize addiction. Reading the extensive briefs the parties and their amici have submitted, one might think this case presents thorny, unresolved questions under both RICO and the First Amendment. As we explain below, however, the heavy lifting has already been done. Given our earlier decisions in this case, the manufacturers’ objection to disclosing that they intentionally designed cigarettes to ensure addiction is both waived and foreclosed by the law of the case. Those decisions make equally clear that the district court, in ordering defendants to announce that they deliberately deceived the public, exceeded its authority under RICO to craft remedies that “prevent and restrain” future violations. 18 U.S.C. § 1964(a). I. Fifteen years ago, the United States filed this suit in the U.S. District Court for the District of Columbia alleging that Philip Morris and eight other cigarette manufacturers violated the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968, by engaging in a then still-ongoing conspiracy to deceive the American public about the health consequences and addictiveness of smoking cigarettes. Pretrial proceedings lasted for years, and when the bench trial finally began in 2004, it spanned nine months, involved hundreds of witnesses, and saw nearly 14,000 exhibits entered into evidence. Two years later, supported by more than 4,000 findings of fact detailing the cigarette manufacturers’ “pervasive scheme to defraud consumers and potential consumers of cigarettes,” carried out “over the course of more than 50 years,” the district court entered final judgment against the defendants. United States v. Philip Morris USA, Inc., 449 F.Supp.2d 1, 851-54 (D.D.C.2006); see also id. at 936. Finding that they joined together to “maximize their profits” through “false and" }, { "docid": "7784321", "title": "", "text": "BATCo had “knowledge and possession” of the Foyle Memorandum “by at least February of 2002,” BATCo was required under Federal Rule of Civil Procedure 26(e), to “identify and/or designate the document” as privileged at that time. Philip Morris, No. 99-2496, slip op. at 4 (D.D.C. July 2, 2002) (memorandum opinion accompanying order). Thus, the court concluded that BATCo’s failure to list the memo on the privilege log waived BATCo’s attorney-client privilege claim. Id. at 4-5. The court did not further address BATCo’s objections. BATCo requested that the district court stay its orders pending appeal. On July 10, 2002, the district court denied the motion for stay, reasoning that BATCo had not established appellate jurisdiction nor shown that it was likely to prevail on its challenge to the waiver ruling. Philip Morris, No. 99-2496, slip op. (D.D.C. July 10, 2002). The court also noted that BAT-Co would not suffer irreparable harm absent a stay, particularly given that many portions of the Foyle Memorandum have already been made public in McCabe. Id. at 2. By contrast, the district court found that a stay would substantially harm the government and undermine the public interest by jeopardizing the “extremely demanding” discovery schedule and July 15, 2003 trial date set by the court. Id. at 2-4. BATCo timely filed this appeal and sought an emergency stay pending expedited review, claiming that the district court should have ruled on its pending objections to producing the Foyle Memorandum, and at that time, given BATCo a chance to log the memo. II. Analysis In seeking a stay pending appeal, BATCo must show (1) that it has a substantial likelihood of success on the merits; (2) that it will suffer irreparable injury if the stay is denied; (8) that issuance of the stay will not cause substantial harm to other parties; and (4) that the public interest will be served by issuance of the stay. Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977). We first consider our jurisdiction over BATCo’s appeal and then address, in turn, the requirements for an emergency stay. A." }, { "docid": "7784337", "title": "", "text": "privilege an opportunity to log the allegedly privileged documents. Id. In short, if a party’s pending objections apply to allegedly privileged documents, the party need not log the document until the court rules on its objections. BATCo claims that its Guildford and third-party objections apply to the Foyle Memorandum. Although there is some doubt whether these objections apply to the Foyle Memorandum, the United States did not raise this argument in opposing the present motion for stay. Moreover, there is no question that the objections were timely raised and at least facially seem to apply to the memo. If these objections are found to apply to the Foyle Memorandum, then the district court’s failure to address the objections, or if it overruled them, then its failure to give BATCo the opportunity to log the memo, was error. Therefore, under these circumstances, we find that BATCo is likely to succeed on its claim that the district court should have considered these objections before ruling that BATCo had waived its privilege. If BATCo succeeds on its appeal, it would be entitled to a remand for the district court to address BATCo’s objections as applied to the Foyle Memorandum. C. Irreparable Injury BATCo would suffer irreparable injury if a stay is denied. Although BATCo “has not asserted any specific irreparable injury that would occur” if it produced the Foyle Memorandum, Philip Morris, No. 99-2496, slip op. at 2 (D.D.C. July 10, 2002), the general injury caused by the breach of the attorney-client privilege and the harm resulting from the disclosure of privileged documents to an adverse party is clear enough. The government argues that we should disregard this harm because parts of the Foyle Memorandum have already been disclosed in the McCabe opinion. We disagree. The release of the McCabe opinion does not diminish the harm that would result from releasing additional privileged information. Moreover, the attorneys for the United States would be able to use the Foyle Memorandum to pursue new leads on discovery and witness questioning. Chase Manhattan Bank, 964 F.2d at 165. The implications of this use of privileged material" }, { "docid": "15371046", "title": "", "text": "Opinion for the Court filed by Circuit Judge RANDOLPH. RANDOLPH, Circuit Judge: On the motion of British American Tobacco (Investments) Ltd. — BATCo—for an emergency stay pending its interlocutory appeal, we upheld our jurisdiction over the appeal, entered a stay of the district court’s orders requiring the production of a document — the Foyle Memorandum — and set the case down for expedited consideration. United States v. Philip Morris Inc., 314 F.3d 612 (D.C.Cir.2003). The issue is whether the district court should have ruled on the applicability of BATCo’s general objections before determining that the company had waived its claim of attorney-client privilege with respect to the Foyle Memorandum. I. The facts of the case are thoroughly set forth in the court’s opinion in Philip Morris Inc., from which we quote: “Appellee, the United States of America, initiated this lawsuit against BATCo and five other tobacco companies in September 1999 alleging that defendants violated the civil provisions of RICO, 18 U.S.C. §§ 1961-68 (2000), by engaging in ‘a pattern of racketeering activity’ to ‘conceal the health risks of cigarette smoking and the addictiveness of nicotine.’ The government further alleges, in relevant part, that defendants have ‘destroy[ed] and concealed] documents’ and taken ‘other steps to shield documents and materials from discovery.’ As a remedy, the government seeks, inter alia, disgorgement of defendants’ profits and recovery of the medical costs of the tobacco companies’ customers. “The parties exchanged Comprehensive Requests for Production on August 22, 2000. The government requested that the defendants produce ‘[a]ll documents relating to record-creating, record-keeping, record-retention, record dissemination or distribution, and/or record-destruction policies, practices, and procedures ... in any part of your organization that has or had responsibility for ... research concerning smoking and health or addiction.’ On November 6, 2000, BATCo responded to the government’s document requests, and objected, inter alia, to producing any documents created prior to August 19, 1994, except those contained in the Guildford Depository in England (the ‘Guildford objection’). The Depository was established in response to a parallel action filed against the same defendants by the State of Minnesota and contains over one" }, { "docid": "2450619", "title": "", "text": "Ohio-based multi-employer trust funds, by one estimate, pay health care costs of approximately 450,000 persons. The proposed class consists of all jointly-administered, multi-employer health and welfare trusts in Ohio and their respective trustees. The trust funds serve union members in industries, such as transportation and the building trades, where a unionist might have a series of employers throughout his or her career. See Doc. 153, Affidavit of Michael E. Withey. .Defendants are Philip Morris, Inc.; RJR Nabisco, Inc.; RJR Nabisco Holdings Corp.; R.J. Reynolds Tobacco Co.; Brown & Williamson Tobacco Corp.; Lorillard Tobacco Co.; American Tobacco Co .; Liggett Group, Inc.; United States Tobacco Sales and Marketing Co., Inc.; and British-American Tobacco Co. Ltd. (“BATCo.”). .In addition to the argument that defendants waived any attorney-client privilege, plaintiffs also claim that these documents are not privileged under the “crime-fraud” exception to privileged communication statutes or rulings. A communication is excepted from the attorney-client privilege if it is undertaken for the purpose of committing or continuing a crime or fraud. State ex rel. Nix v. Cleveland, 83 Ohio St.3d 379, 383, 700 N.E.2d 12 (1998). See also United States v. Collis, 128 F.3d 313, 321 (6th Cir.1997); State v. Mullins, 26 Ohio App.2d 13, 18, 268 N.E.2d 603 (4th Dist.1971) (\" 'A privileged communication may be a shield of defense as to crimes already committed, but it cannot be used as a sword or weapon of offense to enable persons to carry out contemplated crimes against society.’ ”). . State of Minnesota, et al. v. Philip Morris, Inc., et al., No. C1-94-8565 (Minn.Dist.Ct. Mar.7, 1997) (Fitzpatrick, J.). . The nearly 40,000 documents consist of an initial production of 864 \"Liggett” documents followed by the production of approximately 39,-000 other documents. . These documents are also available for purchase on CD-ROM through the United States Government Printing Office in Washington, D.C. Defendants now say these documents remain privileged. . The Liggett Group is a defendant in the present action and has also reached a tentative settlement agreement with the plaintiffs here. . Chairman Bliley wrote to the Philip Morris Companies, Inc. RJR Nabisco," }, { "docid": "23415339", "title": "", "text": "Cir.1992), the court, following an in camera review of 1,500 documents, confirmed “plaintiffs contentions of the explicit and pervasive nature of the alleged fraud by defendants [Liggett, Lorillard, Reynolds, Philip Morris, and the Tobacco Institute] and defendants’ abuse of the attorney-client privilege as a means of effectuating that fraud.” Specifically, the court found “that the attorney-client privilege was intentionally employed to guard against ... unwanted disclosure.” Haines, 140 F.R.D. at 684. Finally, the court stated that defendants and their lawyers “abused the attorney-client privilege in their efforts to effectuate their allegedly fraudulent schemes.” Id. at 695. 4033. In (Re Mowbray) Brambles Australia Ltd. v. British American Tobacco Australia Services Ltd. [2006] NSWDDT 15, at Par. 56, 57, the Dust Diseases Tribunal of New South Wales concluded, after considering evidence that included the trial testimony of Frederick Gulson in the present litigation, that “BATAS in 1985 drafted or adopted the Document Retention Policy for the purpose of a fraud ....”; that “[t]he terms of the policy would appear to be so contrived that BATAS may secure legal sanction for the stated policy, while nevertheless selectively destroying prejudicial documents”; and that BATAS’ communications to its lawyers made for the purpose of obtaining advice about document destruction under the 1985 Document Retention Policy “were communications in furtherance of the commission of a fraud----” 4. Conclusions 4034. The foregoing Findings of Fact demonstrate that, over the course of approximately fifty years, different Defendants, at different times, took the following actions in order to maintain their public positions on smoking and disease-related issues, nicotine addiction, nicotine manipulation, and low tar cigarettes, in order to protect themselves from smoking and health related claims in litigation, and in order to avoid regulation which they viewed as harmful: they suppressed, concealed, and terminated scientific research; they destroyed documents including scientific reports and studies; and they repeatedly and intentionally improperly asserted the attorney-client and work product privileges over many thousands of documents (not just pages) to thwart disclosure to plaintiffs in smoking and health related litigation and to federal regulatory agencies, and to shield those documents from the harsh" }, { "docid": "7784318", "title": "", "text": "light of increasing litigation against tobacco companies in the United States and Australia. Subsequent to the McCabe decision’s release, the government requested by letter that BATCo produce the Foyle Memorandum. BATCo responded that it had been “unable to locate the document[], or any evidence that plaintiff selected [it] for production.” On May 28, 2002, during the deposition of former BATCo CEO Ulrich Herter, government counsel requested the “immediate production” of the Foyle Memoran dum so it could be used to refresh Herter’s recollection. When BATCo’s counsel declined, government counsel initiated an emergency teleconference with the district court to determine whether BATCo was required to immediately produce the Foyle Memorandum. During the teleconference, BATCo contended that the document was covered by the Guildford objection and informed the Court that it did not even know if the document was in its possession. Moreover, BATCo argued that the Foyle Memorandum was protected by the attorney-client privilege. The district court did not address BATCo’s Guildford and third-party objections. Instead, the court ruled that BATCo had waived any claim of attorney-client privilege because the memo had not been listed in BATCo’s privilege log. The court added that BATCo was free to re-litigate the underlying facts of the order before the Special Master in the case. The following day, the district court issued a written order memorializing the telephone ruling and requiring BATCo to produce the memo “if the document is in the control or possession of BATCo,” and to make “all reasonable effort to locate” it. United States v. Philip Morris Inc., No. 99-2496 (D.D.C. May 29, 2002) (“Order 157”). On May 30, 2002, BATCo and the government twice appeared in telephonic conferences before the Special Master in which BATCo sought to attack Order 157. Although the argument in the first conference is not part of the record, BATCo appears to have raised its Guildford and third-party objections in this conference. See Oral Rep. and Recom. 56 at 35 (BAT-Co counsel raising objection in context of “reiterat[ing] what I said this morning”). It definitely raised them in the second conference. See id. at 35, 43." }, { "docid": "23415217", "title": "", "text": "heart disease, or chronic obstructive pulmonary disease. ARG0412302-2303 (U.S. 86747); see also ARU6220813-0814 (U.S. 86743). 3836. BATCo’s website also claims that the 1998 WHO/IARC study, which reported a increased relative risk of lung cancer of 16% for spousal exposure and 17% for workplace exposure, “found no meaningful increase in lung cancer risk.” BATCo summarizes the 2003 Enstrom study results, but fails to state that the study was funded and managed by the tobacco industry through CIAR and Philip Morris. ARG0412302-2303 (U.S. 86747). 3837. BATCo has denied ETS-related health risks in other recent public statements. According to a March 1998 news article, BAT Chairman Martin Broughton was asked if he stood by the company’s assertion that passive smoking is not a health risk. Broughton’s response was: “There is virtually no evidence at all to the contrary.” ARU6532231-2233 at 2232 (U.S. 86878). 3838. In 2002, BATCo published a document titled “British American Tobacco Social Report 2001/2002.” In this report, BATCo asserted: There is also a debate about Environmental Tobacco Smoke (ETS), also known as passive smoking. Some say it poses health risks, and others, including ourselves, say there is no convincing evidence that ETS is a cause of chronic diseases such as lung cancer. TLT0231830-TLT0231910 at 1844 (U.S. 76316). 3839. When Philip Morris Companies originally established the Philip Morris website in October 1999, its public position on passive smoking was that while “many scientists and regulators have concluded that ETS poses a health risk to nonsmokers,” Philip Morris did not agree with these conclusions, (no bates) (U.S. 92056). 3840. In summer 2001, Philip Morris revised its position on ETS. According to a June 11, 2001 memorandum from Paula Desel to Raymond Lau and others, and copied to Ellen Merlo, Chuck Wall, Denise Keane, Mark Berlind, and others, Desel attached a draft revised ETS position for the Philip Morris website. 2083609049-9049 (2083609050-9056 (withheld as privileged)) (U.S. 92058). 3841. The draft was forwarded to Roger Walk, a Philip Morris scientist in Europe (and INBIFO Scientific Adviser), who forwarded his comments to Raymond Lau. According to an undated Philip Morris document, a Philip Morris employee" }, { "docid": "15371047", "title": "", "text": "health risks of cigarette smoking and the addictiveness of nicotine.’ The government further alleges, in relevant part, that defendants have ‘destroy[ed] and concealed] documents’ and taken ‘other steps to shield documents and materials from discovery.’ As a remedy, the government seeks, inter alia, disgorgement of defendants’ profits and recovery of the medical costs of the tobacco companies’ customers. “The parties exchanged Comprehensive Requests for Production on August 22, 2000. The government requested that the defendants produce ‘[a]ll documents relating to record-creating, record-keeping, record-retention, record dissemination or distribution, and/or record-destruction policies, practices, and procedures ... in any part of your organization that has or had responsibility for ... research concerning smoking and health or addiction.’ On November 6, 2000, BATCo responded to the government’s document requests, and objected, inter alia, to producing any documents created prior to August 19, 1994, except those contained in the Guildford Depository in England (the ‘Guildford objection’). The Depository was established in response to a parallel action filed against the same defendants by the State of Minnesota and contains over one million documents. State of Minnesota v. Philip Morris, Inc., No. C1-94-8565 (Minn.Super.Ct.1994). BATCo also objected to producing any documents in the possession of third parties if the documents were not also in BATCo’s possession, custody, or control (the ‘third-party objection’). “In March 2002, the Supreme Court of Victoria, Australia, publicly released a decision regarding discovery in a case involving W.D. & H.O. Wills (‘Wills’), an Australian subsidiary of British American Tobacco Australia Services Limited(‘BA-TAS’), in which BATCo has a minority ownership interest. McCabe v. Brit. Am. Tobacco Austl. Servs., Ltd., (2002) V.R. 73. The decision quotes extensively from a March 1990 memorandum prepared for Wills by an attorney at the British law firm Lovell, White & Durrant (‘Lovell’), in its capacity as counsel for Wills and BAT-Co (the ‘Foyle Memorandum’ or ‘the memo’). See id. The Foyle Memorandum advises Wills on modifying its document retention policy in light of increasing litigation against tobacco companies in the United States and Australia. “Subsequent to the McCabe decision’s release, the government requested by letter that BATCo produce the" } ]

[ { "docid": "3845113", "title": "", "text": "trial. Another identification problem raised at the suppression hearing involved an accidental confrontation between complainant and the appellant at a preliminary hearing shortly after the appellant’s arrest. This confrontation took place while complainant, accompanied by a police detective, was waiting for the hearing to begin in a hallway of the Court of General Sessions. The appellant was being led into the courtroom by a marshal, and as they passed near the complainant she spontaneously identified Terry as her assailant to the detective who was waiting with her. Cross-examination of the detective indicated that it was possible he had exchanged remarks with appellant immediately prior to this identification, so it, too, was excluded from evidence. At the same time, the court ruled that these two impermissible identifications did not preclude the complainant from making an independent in-court identification based upon her observation of the attacker at the time of the assault. In support of this result, the court pointed out that the complainant was in close proximity to her attacker for a period of approximately fifteen minutes, both on a public street in broad daylight and in a well-lighted room; the court also noted that she gave police a consistent description of her attacker, and had not wavered in her identification at any stage of the proceedings (Tr. 102). At the trial she unhesitatingly identified Terry as the man who had at tacked her (Tr. 102). We find that the trial court correctly assessed the relevant factors enumerated in United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and United States v. O’Connor, 282 F.Supp. 963, 965-966 (D.D.C.1968), aff’d, 137 U.S.App.D.C. 76, 420 F.2d 644 (D.C.Cir. Dec. 19, 1969), and that the showing of independent source is at least as strong as that which was upheld by this court in Hawkins v. United States, 137 U.S.App.D.C. 103, 420 F.2d 1306 (D.C.Cir. July 9, 1969). With the two pretrial identifications excluded from evidence, there was little that the Government could have introduced as corroboration for the appellant’s identity other than the testimony of a police officer" } ]

[ { "docid": "7680857", "title": "", "text": "in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In Stovall it held that a defendant was entitled to show that the confrontation in his case “was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.” 388 U.S. at 301-302, 87 S.Ct. at 1972 (emphasis supplied). The Court went on to say that “The practice of showing suspects singly to persons for the purpose of identification, and not as a part of a lineup, has been widely condemned.” It affirmed defendant’s conviction only because the record revealed that “the showing of Stovall to [the eyewitness-victim] in an immediate hospital confrontation was imperative.” Id. at 302, 87 S.Ct. at 1972 (emphasis supplied). The clear thrust of Stovall is that, without justifying circumstances, a one-man showup is too unnecessarily suggestive to satisfy due process. A lineup must be conducted unless it will necessitate a delay which is likely to make identification impossible or less reliable; In Wade the Court pointed out that cross-examination at trial “cannot be viewed as an absolute assurance of accuracy and reliability [in courtroom identifications]. Thus, in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself.” 388 U.S. at 235, 87 S.Ct. at 1936. In other words, we must insist on the fairest feasible identification procedures and not rely on the courts’ ability to gauge the psychological effects of more suggestive procedures. In light of Stovall and Wade, I must reject the majority’s assertion that I am making a new “constitutional pronouncement.” I would remand to the District Court to give the Government an opportunity to show that the failure to hold a lineup was justified. Due process requires this showing. . See United States v. Wade, 388 U.S. 218, 229-230, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and materials cited therein. . In Stovall" }, { "docid": "4023042", "title": "", "text": "been shown some pictures, including that of the defendant in a high school annual and some blown up pictures of the defendant. Defendant was not represented by counsel in such proceeding nor was counsel waived. Defendant was not exhibited in a lineup. Defendant urges that such confrontation violates rights guaranteed by the Fifth and Sixth Amendments to the United States Constitution under the teaching of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L.Ed.2d 1199. Such cases were all decided on June 12, 1967. Stovall squarely holds that the right to be represented by counsel at lineup proceedings, which right was established by Wade and Gilbert, applies only to confrontations for identification purposes conducted in the absence of counsel after June 12, 1967. Defendant was convicted by a jury on May 26, 1967. Consequently, the Sixth Amendment defense based on right to counsel at the lineup is not open to the defendant. Still open, however, is defendant’s right to prove “that the confrontation resulted in such unfairness that it infringed his right to due process of law.” Stovall v. Denno, supra, at 299, 87 S.Ct. at 1971. The confrontation must be “so unnecessarily suggestive and conducive to irreparable mistaken identification” based upon “the totality of the circumstances surrounding it” that due process is denied. Id. at 302, 87 S.Ct. at 1972. In Stovall, the Supreme Court upheld a hospital bed identification of the defendant, who was the only person presented. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the Supreme Court applied the same test to a federal prosecution as it had in the ha-beas corpus review of the state court conviction in Stovall. Before apprehension, Simmons was identified from photographs and the witnesses later made in-court identifications. After examining the circumstances, discussing proper identification procedure, pointing out the hazards inherent in improper procedures, and admitting that the identification process was far from" }, { "docid": "7680856", "title": "", "text": "S.Ct. 118; Rescue Army v. Municipal Court, supra, 331 U.S. at 568, 67 S.Ct. 1409. . 388 U.S. at 239, 242, 87 S.Ct. 1926. . Id. at 272-274, 87 S.Ct. 1951. . Gilbert v. State of California, supra note 8, 388 U.S. at 274, 87 S.Ct. at 1957, quoting Chapman v. State of California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). . Gilbert v. State of California, supra note 8, 388 U.S. at 272-274, 87 S.Ct. 1951. . United States v. Wade, supra note 7, 388 U.S. at 240, 87 S.Ct. at 1939; Gilbert v. State of California, supra note 8, 388 U.S. at 272, 87 S.Ct. 1951. BAZELON, Chief Judge (dissenting): I believe that due process is violated whenever the police unjustifiably fail to hold a lineup. Since mistaken identifications are probably the greatest cause of erroneous convictions, we must require the fairest identification procedures available under the circumstances. With the stakes so high, due process does not permit second best. I think this is what the Supreme Court meant in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In Stovall it held that a defendant was entitled to show that the confrontation in his case “was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.” 388 U.S. at 301-302, 87 S.Ct. at 1972 (emphasis supplied). The Court went on to say that “The practice of showing suspects singly to persons for the purpose of identification, and not as a part of a lineup, has been widely condemned.” It affirmed defendant’s conviction only because the record revealed that “the showing of Stovall to [the eyewitness-victim] in an immediate hospital confrontation was imperative.” Id. at 302, 87 S.Ct. at 1972 (emphasis supplied). The clear thrust of Stovall is that, without justifying circumstances, a one-man showup is too unnecessarily suggestive to satisfy due process. A lineup must be conducted unless it will necessitate a delay which is likely to" }, { "docid": "8371694", "title": "", "text": "the persons to be viewed committed the crime; and (6) the identification by picture of the defendant prior to the lineup. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); United States v. Simmons, supra, 390 U.S. at 383, 88 S. Ct. 967; United States v. Wade, 388 U. S. 218, 241, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In the totality of the circumstances we are of the opinion that the suggestive confrontations of the witnesses with the photographs and lineup gave rise to a very substantial likelihood of irreparable misidentification, rendering their in-trial identifications inadmissible as in violation of due process of law under the standards stated in United States v. Simmons, supra, 390 U.S. at 383-384, 88 S.Ct. 967; and see, United States v. Wade, supra, 388 U.S. at 241, 87 S.Ct. 1926; Foster v. California, supra, 394 U. S. at 442-443, 89 S.Ct. 1127; Neil v. Biggers, supra, at 198. Moreover, as appears from our analysis, the testimony lacks a solid basis for attributing the identifications to sources independent of the procedures referred to, and the errors residing in those procedures were not harmless, since the afflicted testimony was essential to the conviction. It is for these reasons we reverse. In the event of a new trial, identifying evidence by the witnesses Samuels and Johnson would be admissible only upon clear and convincing evidence adduced by the government that their respective in-court identifications would rest upon a source independent of the identifying procedures we have held to have been impermissibly suggestive. United States v. Ash (en banc), 149 U. S.App.D.C. 1, 14-15, 461 F.2d 92, 105-106, cert. granted, 407 U.S. 909, 92 S.Ct. 2436, 32 L.Ed.2d 682 (1972); Mason v. United States, 134 U.S.App.D.C. 280, at 286, 414 F.2d 1176, at 1182 (1969). Cf. Foster v. California, supra. The criteria governing the issue of admissibility which we have applied to the trial of this case was first referred to in Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The Court was there concerned primarily with" }, { "docid": "23608104", "title": "", "text": "MEDINA, Circuit Judge: On this appeal from an order denying a habeas corpus collateral attack on a New York State judgment of conviction for robbery the only substantial question concerns the identification of appellant Rutherford as one of the robbers. The robbery occurred on October 29, 1965, Rutherford was identified as the robber at a police station showup conducted on November 9, 1965, he was later indicted by a Grand Jury on January 25, 1966, and then convicted, after a trial by jury, on September 15, 1966. He was sentenced on November 1, 1966. The new rules applicable to cases of in-court identifications preceded by pretrial identifications in lineups or show-ups without notice to or the presence of counsel were adopted by the Supreme Court on June 12, 1967 in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). In the companion case of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) the Court held the new rules were not retroactive but that cases involving “confrontations for identification purposes conducted in the absence of counsel” prior to June 12, 1967 were to be governed by the application of the principles of due process of law, which is said to involve an inquiry as to whether or not the confrontation in a particular case “was so unnecessarily suggestive and conducive to irreparable mistaken identification,” as to make it unlawful, depending upon “the totality of circumstances surrounding” the confrontation. 388 U.S. at p. 302, 87 S.Ct. at p. 1972. In another case decided at the next Term of Court, Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Stovall rule was paraphrased by indicating that it was a flexible rule and that the identification procedure will be set aside only when “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification.” 390 U.S. at page 384, 88 S.Ct. at page 971. The only violation of due process" }, { "docid": "7891474", "title": "", "text": "293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), argues that these pretrial photographic and physical lineups were “* * so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification,” Simmons v. United States, supra 390 U.S. at 384, 88 S.Ct. at 971, and that this allegedly prejudicial action denied him due process of law, for this pretrial procedure tainted Sees’s courtroom identification at trial. But any reliance by appellant upon Simmons and Stovall, or, for that matter, even upon United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), even if Gilbert and Wade were otherwise applicable (see Stovall v. Denno, supra) does not.avail appellant in this case. Cases like Wade, Gilbert, Simmons and Stovall involve situations where the perpetrator fled the scene of the crime and was not detained or arrested at that scene, but sometime later a suspect is shown in a lineup or photographs of suspects are shown to the victim, or to witnesses. In all these and similar cases there was a period of time during which the perpetrator of the crime had been free and out of the sight of all witnesses to the crime; a period which would permit suggestive procedures and practices to have an effect. This was not the case here. According to the trial testimony Peano pointed out to Sees a man who had just given Peano a questioned ten dollar bill. Sees saw the man and called to the doorman to stop the man from leaving. The man was stopped. With the man still in sight Sees proceeded to the door where he confronted the man with the counterfeit ten dollar bill. After a discussion the man started to depart but was again stopped when the doorman remembered the passing of two other similar bills. While the man was prevented from leaving, police were called and the man, still in the company of Sees, was arrested and then taken into custody. At no time was the man" }, { "docid": "1078502", "title": "", "text": "enth Circuit which has cautioned that, when the witness is equally available to both sides, the preferred practice is to preclude the argument rather than to leave the jury free “to speculate about the meaning of a great deal of non-evidence.” Id. (quoting United States v. Keplinger, 776 F.2d 678, 703 (7th Cir.1985)). B. Granted Issue II There are four possible attacks on eyewitness identification evidence—as violations of the Fourth Amendment, cf. Adams v. United States, 399 F.2d 574 (D.C.Cir.1968); the Fourteenth (and implicitly the Fifth) Amendment’s Due Process Clause, Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); the Fifth Amendment’s self-incrimination clause; and the Sixth Amendment right to counsel. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Supreme Court concluded that due process is violated when a pretrial identification is so unnecessarily suggestive that it creates a substantial likelihood of a mistaken identification. Testing for a substantial likelihood of a mistaken identification requires a two-step analysis: First, was the pretrial identification “unnecessarily suggestive” and second, was it “conducive to irreparable mistaken identification”? Id. at 302, 87 S.Ct. at 1972. Concerning the first issue of suggestibility, a defendant is entitled to a fair lineup, but not a lineup of look-alikes. Compare United States v. Cole, 449 F.2d 194, 200 (8th Cir.1971)(in determining whether the pretrial identification was suggestive the court may consider counsel’s opportunity to inquire or to object), with United States v. Allen, 408 F.2d 1287, 1289 (D.C.Cir.1969) (allowing counsel to be present and propose changes would constitute a waiver of any objection unless the suggestions were disregarded). Here defense counsel was present, made no objection but rather commented that it was not a bad lineup. Indeed, during argument at trial, defense counsel conceded the lineups were not suggestive. However, appellant does challenge the reliability of 2LT H’s identification of appellant in the lineups because of her lack of opportunity to view her assailant. Appellant further claims that the military judge abused his" }, { "docid": "20838669", "title": "", "text": "such improper lineups is inadmissible at trial. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The United States Supreme Court has been unwilling to prohibit the use of photographs for identification purposes, but has noted that the use of a single photograph may sometimes be so suggestive as to give rise to a substantial possibility of misidentification. In such a case, the identification will be treated in the same fashion as an improper lineup. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Where, however, a witness has an independent recollection of the accused arising from events other than the improper confrontation, an in-court identification may be permitted. In Simmons v. United States, supra, the court refused to hold that an in-court identification was necessarily tainted by improper pretrial use of photographs, stating (390 U.S. 377, 384, 88 S.Ct. 967, 971): “Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identifications at trial * * * will be set aside on that ground only if the * * procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irrepairable misidentification.” In determining whether there are reliable indications that a witness in fact has an independent recollection of the accused and is not basing his present recollection on what he saw at an improper lineup, courts have considered the following: (1) the length of time and the conditions under which a witness was able to observe the perpetrator during the commission of the crime: United States v. Terry, 137 U.S.App.D.C. 267, 422 F.2d 704 (1970); Gregory v. United States, 133 U.S.App.D.C. 317, 410 F.2d 1016 (1969); Long v. United States, 137 U.S.App.D.C. 311, 424 F.2d 799 (1969); United States v. McNamara, 422 F.2d 499 (1st Cir.), cert. denied, 397 U.S. 1056, 90 S.Ct. 1403, 25 L.Ed.2d 674 (1970); United" }, { "docid": "2287251", "title": "", "text": "courts. If we were formulating rules to be applied by federal courts in federal cases the foregoing considerations might very well compel us to adopt, in the exercise of our supervisory power for the courts in this circuit, the exclusionary rule petitioner suggests. In this case, however, we deal with the adequacy of state lineup procedures and the only question before us is whether the procedures employed violated petitioner’s due process rights. The precise extent of those rights in the circumstances of this case can only be delineated by reviewing the relevant cases. In 1967 the Supreme Court decided three landmark cases dealing with witness-suspect pre-trial confrontations. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In Stovall the Court determined that the Wade holding of right to counsel at lineups was to be applied only prospectively. The Court did hold however, that if a confrontation “was so unnecessarily suggestive and conducive to irreparable mistaken identification” so as to deny due process of law, this would be a permissible basis for granting a habeas corpus petitioner his requested relief. Stovall, supra at 302, 87 S.Ct. at 1972. It went on to say; “[h]owever, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it .” Id In Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), the Supreme Court applied the Stovall standard. In that case the petitioner stood out from the other two men by the contrast of his height and by the fact that he was wearing a black leather jacket similar to that worn by the robber. This was followed by a show-up. When neither of these methods produced a definite identification another confrontation was arranged where the petitioner was the only one who had also been in the first lineup. Under these circumstances where the police were in effect" }, { "docid": "3210356", "title": "", "text": "guilt, citing the rule outlined in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). . 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). . 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). . 388 U.S. at 237, n. 27, 87 S.Ct. at 1938. . In Kirby, the court explored to some length the advantages which might be derived from the presence of a substitute counsel and from one’s own trial counsel. None of these supposed advantages accrue to the defendant unless some communication is established between the two representatives of the defendant’s interests. . The court in Marshall was inclined to raise this issue sna sponte had it not found the use of the identification testimony to be harmless error. See note 2, supra. . 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). The Court relied on Stovall v. Denno which held that an identification confrontation which is “unnecessarily suggestive and conducive to irreparable misidentification” deprives the defendant of due process of law. 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). . United States v. Gambrill, supra note 2, 146 U.S.App.D.C. at-, 449 F.2d at 1153. See also Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969), for a discussion of the standard of review established by Wade, Stovall and Simmons. . At the pretrial hearing, Gaines admitted that there was at least some doubt in his mind about this identification. . Gaines stated at the pretrial hearing that he was 100% sure when he made this second identification. . At the pretrial hearing Gaines testified as follows: Q: Are you able to say the identification of the defendant Estes at the time of the lineup was solely upon your observation of him at the time of the robbery? A: Yes. Q: Would you explain that a little more please? Yes, what? A: Well, when" }, { "docid": "6077495", "title": "", "text": "admission of the in-court identification of Johnson by Miss Littlejohn was permissible. See Simmons v. United States, supra; Foster v. California, 1969, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402; Chapman v. California, 1967, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Given the suggestive confrontation previously discussed, we must conclude that there was “a very substantial likelihood of irreparable misidentification” in Miss Littlejohn’s in United States v. Sutherland, 5 Cir. 1970, 428 F.2d 1152. The important identification was the initial one outside the courtroom. “ ‘[I]t is a matter of common experience that, once a witness has picked out the accused [at a pre-trial confrontation] . . . he is not likely to go back on his word later on, so that in practice the issue of identity may . for all practical purposes be determined there and then, before the trial.’ ” United States v. Wade, 1967, 388 U.S. 218, 229, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149, 1159. Miss Littlejohn, before being subjected to the suggestive confrontation three years after the robbery, had repeatedly failed to positively identify Johnson and had, in fact, identified others as resembling the robber. The in-court identification must be regarded as “fruit of a suspect pretrial identification.” United States v. Wade, supra, 388 U.S. at 235, 87 S.Ct. at 1936. The in-court identification by Miss Littlejohn was the cornerstone of the Government’s case. Without that identifiea tion, we could not say, on the present record, that there is sufficient evidence to support a conviction of Johnson. In short, “the identification procedure was so unduly prejudicial as fatally to taint [Johnson’s] . . . conviction.” Simmons v. United States, 390 U.S. at 383, 88 S.Ct. at 970. See United States v. Sutherland, 5 Cir. 1970, 428 F.2d 1152. Because we have concluded that the pretrial confrontation denied Johnson due process of law under the standard of Stovall v. Denno, supra, we need not, and do not, decide whether the confrontation was governed by the holding in United States v. Wade, supra. In particular, we do not decide whether the confrontation was" }, { "docid": "23441193", "title": "", "text": "the government originally rested its case the defendants’ motion for directed verdicts should have been granted.” United States v. Maggio, 126 F.2d 155, 158 (3 Cir. 1942). Schartner was no more prejudiced by the establishment of federal insurance at this particular point in the trial rather than if this operative fact had been stipulated earlier. Accordingly, we find no abuse of discretion in the trial Judge’s denying appellant’s motion for a judgment of acquittal and allowing the Government to reopen its case for this limited purpose. See United States v. Webb, 398 F.2d 553, 558 (4 Cir. 1968); Morgan v. United States, 380 F.2d 686, 703 (9 Cir. 1967); Lucas v. United States, 343 F.2d 1, 2-3 (8 Cir. 1965). Cf. Maggio, supra, and Massey v. United States, 358 F.2d 782, 786 (10 Cir. 1966). III. Schartner’s arraignment identification by Government witnesses. As stated above, the Government’s only two eye witnesses to the crime, Rosinski and Harvey, identified Schartner during the course of a Government-arranged pre-trial confrontation at his arraignment in a court room of the United States Court House in Philadelphia. Both witnesses testified that they had recognized Schartner as soon as they had entered the court room while he was sitting in a jury box with two other men. Although Rosinski and Harvey were informed that Schartner would be in the court room the witnesses did not disclose their respective identifications until each identification had been made. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U. S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) held that the absence of counsel at a pretrial lineup violates the Sixth Amendment. While Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), held that Wade and Gilbert are prospective only, it was stated that a pre-trial confrontation may violate due process if under “the totality of circumstances” the confrontation is “unnecessarily suggestive and conducive to irreparable mistaken identification.” 388 U. S. at 302, 87 S.Ct. at 1972. Under the totality of circumstances in the case at" }, { "docid": "21956872", "title": "", "text": "man who had robbed him that day, although he was told nothing about the suspect he was to view. (3) Admissibility of evidence of pretrial identification by the witness Alberstadt. Defendant has argued at length that his identification by the witness Alberstadt was the fruit of an illegal arrest and as such should be suppressed. The Court having found that defendant was not arrested until immediately after his identification by Mr. Alberstadt on March 6, this argument is not of significance. The primary issue involved in determining the admissibility of pre-trial identification is whether the identification procedure followed was “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to amount to a denial of due process of law. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), establish a right to counsel at pretrial confrontations but have not been applied retroactively. The thrust of Stovall is primarily toward single suspect confrontations wherein a witness is presented with one individual and asked if he can make an identification. It is clear that the possibility of such a procedure amounting to unfairness violative of due process must be examined in light of the totality of the surrounding circumstances. The Court has considered this issue in other caes, and in United States v. O'Connor, 282 F.Supp. 963, 965, outlined some tests to be applied to confrontations between witness and suspect in determining the impact of the Stovall decision upon a particular case. These tests are as follows: 1. Was the defendant the only individual that could possibly be identified as the guilty party by the complaining witness, or were there others near him at the time of the confrontation so as to negate the assertion that he was shown alone to the witness ? 2. Where did the confrontation take place ? 3. Were there any compelling reasons for a prompt confrontation so as to deprive the police of the" }, { "docid": "9681780", "title": "", "text": "were arrested by police during the mid-afternoon of February 22, 1968, several hours after the robbery occurred. Mr. Doyle had been contacted by the police and was told that there were some suspects they would like him to see. The police positioned Doyle in an automobile outside the police station, where he witnessed petitioner’s two co-defendants exiting from a squadrol. Later that evening, Mr. Doyle returned to the police station where he witnessed a show-up of six Negro persons, three men and three women, with petitioner and the two women whom Doyle had viewed earlier in the middle of the group. At this show-up, Doyle identified petitioner and his two co-defendants as the perpetrators of the robbery. No counsel was present at the time of this identification, nor at bond court where Doyle again witnessed the defendants. The petitioner made a motion at his trial to suppress all identification testimony, both the out-of-court and any in-court identification on the basis of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), three decisions of the United States Supreme Court which indicate that Court’s concern with the manner in which pretrial identifications are frequently made. These cases establish that a suspect has a Sixth Amendment right to counsel at a pretrial confrontation subsequent to June 12, 1967, and a Fourteenth Amendment right to be free from pretrial identification so unnecessarily suggestive and susceptible to mistaken identification as to deny due process of law. These cases further establish that, even if the State violates a suspect’s rights in a pretrial confrontation, in-court identifications may nevertheless be made by witnesses who viewed the suspects at a tainted confrontation, but only if the State establishes that the in-court identification proceeded from a source independent of the prior illegal confrontation. Gilbert v. California, 388 U.S. at 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178; United States v. Wade, 388 U.S. at 240-241, 87 S.Ct. 1926, 18" }, { "docid": "9681781", "title": "", "text": "Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), three decisions of the United States Supreme Court which indicate that Court’s concern with the manner in which pretrial identifications are frequently made. These cases establish that a suspect has a Sixth Amendment right to counsel at a pretrial confrontation subsequent to June 12, 1967, and a Fourteenth Amendment right to be free from pretrial identification so unnecessarily suggestive and susceptible to mistaken identification as to deny due process of law. These cases further establish that, even if the State violates a suspect’s rights in a pretrial confrontation, in-court identifications may nevertheless be made by witnesses who viewed the suspects at a tainted confrontation, but only if the State establishes that the in-court identification proceeded from a source independent of the prior illegal confrontation. Gilbert v. California, 388 U.S. at 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178; United States v. Wade, 388 U.S. at 240-241, 87 S.Ct. 1926, 18 L.Ed.2d 1149; see also, Clemons v. United States, 133 U.S.App.D.C. 27, 34, 408 F.2d 1230, 1237 (en banc 1968), cert. denied 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). The trial court, prior to admitting Doyle’s in-court identification testimony, held a hearing on petitioner’s motion to suppress during the course of Doyle’s testimony, but out of the presence of the jury (Tr. pp. 270-332) and suppressed the identifications made at the line-up, apparently concluding that the petitioner’s constitutional rights under Wade had been violated (Tr. p. 325). In considering the motion to suppress any in-court identifications, the trial court made several statements crucial to the issues herein. In response to a question by defense counsel as to whether the defendant had the burden of establishing that the improper line-up did in fact taint the in-eourt identification, the court responded, “It is the burden of the defense to do that.” (Tr. p. 154). When counsel for both sides suggested at the hearing that the burden of proof was upon the other, the court stated," }, { "docid": "8023370", "title": "", "text": "previously been held. Nothing less will satisfy the demands of the Sixth Amendment. And nothing more is needed to satisfy the demands of law enforcement. J. SKELLY WRIGHT, Circuit Judge, with whom BAZELON, Chief Judge, and SPOTTSWOOD W. ROBINSON, III, Circuit Judge, concur, dissenting: In June 1967 the Supreme Court decided a trilogy of “lineup” cases which brought into sharp focus the problem of pretrial identifications. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). These cases held that a lineup is a critical stage in the criminal process at which an accused is constitutionally entitled to the assistance of counsel. In reaching this result, the Court noted that pretrial identification procedures are “peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial,” and that “[a] major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.” 388 U.S. at 228, 87 S.Ct. at 1933. The Court therefore concluded that the presence of counsel at lineups is necessary (1) to minimize the likelihood of an unduly suggestive confrontation and (2) to enable an informed challenge to be made at trial to either the admissibility or the credibility of identification evidence. See Clemons v. United States, 133 U.S.App.D.C. 27, 31, 408 F.2d 1230, 1234 (1968) (en banc), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). With these considerations in mind, the Court laid down a prophylactic rule that evidence of identification at a tainted pretrial lineup is per se inadmissible, and the admission of such evidence is cause for automatic reversal unless shown to be “harmless beyond a reasonable doubt.” 388 U.S. at 274, 87 S.Ct. 1951. Recognizing that many of the same dangers inherent in lineup procedures exist also in pretrial photographic" }, { "docid": "10513835", "title": "", "text": "questions, defendant then made certain admissions concerning his involvement in the bank robbery under investigation. During this interrogation, defendant apparently made no request for counsel, nor did he ever refuse to answer any questions posed by Agent Wenger. Defendant asserts that the identification procedures used at the bank shortly after the robbery were highly suggestive and improper and that all identification testimony and evidence based on this show-up should therefore be suppressed. I cannot agree with this conclusion. It has been recognized that a defendant has no right to counsel at on-the-scene identifications made prior to the institution of formal criminal proceedings against him. United States ex rel. Gomes v. State of New Jersey, 464 F.2d 686 (3d Cir. 1972); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The right-to-eounsel rule of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. Califor nia, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), therefore does not preclude admitting the identification testimony at trial. Even though the defendant had no right to counsel at the on-the-scene confrontation, that identification evidence may be suppressed if the identification procedures were so unnecessarily suggestive and so conducive to irreparable mistaken identification that defendant was denied due process of law. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Kirby v. Illinois, supra. In this case it is clear that the defendant was not shown in a lineup with other people. He was escorted into the bank by uniformed policemen. The suspect was handcuffed at the time. The witnesses had been told that a suspect was being brought to the bank and that they would be asked to attempt to make an identification. Three bank employees viewed the suspect in one-on-one confrontations and all identified the defendant, Bernard Howard, as being the person who had robbed the Savings and Loan that day. One-man show-ups that are conducted shortly after a crime has been committed are not per se violative of due process and evidence obtained through use" }, { "docid": "23441194", "title": "", "text": "the United States Court House in Philadelphia. Both witnesses testified that they had recognized Schartner as soon as they had entered the court room while he was sitting in a jury box with two other men. Although Rosinski and Harvey were informed that Schartner would be in the court room the witnesses did not disclose their respective identifications until each identification had been made. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U. S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) held that the absence of counsel at a pretrial lineup violates the Sixth Amendment. While Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), held that Wade and Gilbert are prospective only, it was stated that a pre-trial confrontation may violate due process if under “the totality of circumstances” the confrontation is “unnecessarily suggestive and conducive to irreparable mistaken identification.” 388 U. S. at 302, 87 S.Ct. at 1972. Under the totality of circumstances in the case at bar,' there was no violation of due process. See United States v. Lipowitz, 407 F.2d 597, 599 (3 Cir. 1969); Dade v. United States, 132 U.S.App.D.C. 229, 407 F.2d 692 (1968). The facts of Dade are on all fours with those of the instant case. IV. As to the sufficiency of Count IV of the indictment and the proof thereunder. Schartner contends that the trial Judge erred in refusing his motion for acquittal on Count IV of the indictment and in charging the jury on that count. Count IV charges that Schartner “did knowingly and unlawfully put in jeopardy by use of a dangerous weapon, to wit: a gun, Mr. Stephen Rosinski, Manager and Mrs. Rose Harvey, Head Teller. * * *” Schartner argues that this count is defective because it does not reveal what was “put in jeopardy”. The test for whether an indictment is sufficiently particular is (a) whether the defendant could in a subse quent prosecution plead former acquittal or conviction and (b) whether it enabled him to prepare his defense. See" }, { "docid": "20838668", "title": "", "text": "conviction. He now petitions this court to hold a hearing on the point. Petitioner’s decision not to testify was a matter of trial strategy. The fact that his testimony would be subject to attack through use of his prior conviction was simply a factor to be considered in arriving at a decision whether to take the stand. Pope v. Swenson, 395 F.2d 321 (8th Cir. 1968); Hill v. Nelson, 423 F.2d 167 (9th Cir. 1970); Wright v. Craven, 412 F.2d 915 (9th Cir. 1969); Cowens v. Wainwright, 373 F.2d 34 (5th Cir.), cert. denied, 387 U.S. 913 (1967); Williams v. Beto, 354 F.2d 698 (5th Cir. 1965); Tompa v. Commonwealth of Virginia ex rel. Cunningham, 331 F.2d 552 (4th Cir. 1964). In-Court Identifications Petitioner maintains that the victims’ in-court identifications were “tainted” by the police’s suggestive use of his photographs and the improper use of his arraignment as a lineup. Unquestionably, it is improper for police to conduct lineups for identification purposes without the presence of defense counsel, and that evidence of identifications made at such improper lineups is inadmissible at trial. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The United States Supreme Court has been unwilling to prohibit the use of photographs for identification purposes, but has noted that the use of a single photograph may sometimes be so suggestive as to give rise to a substantial possibility of misidentification. In such a case, the identification will be treated in the same fashion as an improper lineup. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Where, however, a witness has an independent recollection of the accused arising from events other than the improper confrontation, an in-court identification may be permitted. In Simmons v. United States, supra, the court refused to hold that an in-court identification was necessarily tainted by improper pretrial use of photographs, stating (390 U.S. 377, 384, 88" }, { "docid": "23396671", "title": "", "text": "resembled the driver. She pointed out McHenry. The trial court ruled that Mrs. Bowman’s in court testimony “can well be based on her observations that she made at the time of the bank robbery, and there is as yet no suggestion she is basing it on anything that occurred in the hearing * * She was allowed thereafter to testify. She was asked whether she saw the driver in the courtroom and in response stated, “I see one that resembles him very much.” She pointed out McHenry. Defendant relies on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. Califor nia, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The fundamental principle of Wade et al., is that some phophylaxis is necessary at police lineups to assure a fair identification procedure. Here McHenry was represented by counsel throughout the preliminary hearing. The record fails to demonstrate any complaint made by defendant’s counsel at the time of the preliminary hearing. Counsel for the defense had ample opportunity to attack Mrs. Bowman’s foundation to make identification at trial. At trial counsel pursued such an examination. Defendant relies on the language of Stovall v. Denno, supra: “The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned. However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it * * * ” 388 U.S. at 302, 87 S.Ct. at 1972. See also Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). Thus, defendant’s main thrust here is that the preliminary hearing resembles the one man show-up and violates due process. Cf. Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968). Each case stands on its own footing. There exists no per se rule excluding a witness’ identification made while counsel is present The trial court may weigh all" } ]

[ { "docid": "668079", "title": "", "text": "a year. These annual limitations were eliminated from the 1973 Program. Secondly, the 1973 Incentive Program expressly provided that an option granted under either plan may include a stock appreciation right, issued either at the time of grant of the option, or at a later date by an amendment to the option. The stock appreciation right (“SAR”) is described as follows in Section XII of the 1973 Proxy Statement (p. 50): “A stock appreciation right shall entitle the optionee to surrender to the Corporation unexercised the option in which it is included, or any portion thereof, and to receive from the Corporation in exchange therefor that number of shares having an aggregate value equal to the excess of the value of one share over the purchase price per share specified in such option times the number of shares called for by the option, or portion thereof, which is so surrendered.” The corporation is entitled to elect to settle its obligation by the payment of cash equal to the aggregate value of the shares it would otherwise have to deliver. Section XII provides that a SAR is exercisable only to the extent that the option in which it is included is still exercisable. With a modification not relevant here, the closing price of Exxon shares on the New York Stock Exchange on the trading day preceding the date of exercise of the SAR is used for purposes of valuation. To understand these incentive programs, their effect and purpose, some general observations may be helpful. The larger, more profitable American corporations which have achieved their success against overwhelming international competition, have done so through the efforts of highly skilled, experienced managerial and executive personnel who generally have little or no ownership of the business and no share in the customary rewards of shareholders. Keeping the high level of motivation of these employees, retaining their loyalty in the future, and protecting their skills, experience and specialized knowledge from raids by competitors or others, is the biggest single responsibility of top management, which naturally is also interested in its own compensation. Vengeful, progressive income" } ]

[ { "docid": "15744890", "title": "", "text": "that the options shall not be exercisable by their holders after their employment by defendant has been discontinued, unless otherwise specified by the board of directors. Plaintiff contends that the granting of the options on these terms and conditions constitutes a gift of corporate property wholly _ without consideration and that neither the directors nor the majority shareholders have a right to make a gift of its property over the objection of any minority shareholder. He further contends that Section 612 of the Pennsylvania Business Corporation Act of 1933, which authorizes the creation of an employees’ share purchase plan, and on which defendant relies as authority for the by-law in question, is inapplicable and, in any event, does not authorize a gift of corporate property. Considering first the applicability of the Pennsylvania statute, the section relied upon states: “Employees’ share purchase plan “Unless otherwise provided in its articles, every business corporation may provide and carry out a plan for the issue and sale of its authorized but unissued shares to its employees, or to the employees of any subsidiary corporation, or to a trustee on their behalf, without first offering such shares to its shareholders, upon such terms and conditions, and in such manner, as shall be provided in the bylaws, except that shares subject to preemptive rights may be so issued and sold under such plan only with the written consent or affirmative vote of the holders of two-thirds of the shares entitled to exercise preemptive rights with respect thereto.” Plaintiff argues, first, that the granting of options to purchase shares is not the “issue and sale” of shares within the language and intent of this section. But the section expressly grants authority to a corporation “to provide and carry out a plan” for the issue and sale of stock to its employees on such terms and conditions as shall be provided in the by-laws. There appears to be no reason why a corporation may not adopt a plan for the issue and sale of stock to its employees which operates by means of the granting of options. Surely" }, { "docid": "668080", "title": "", "text": "otherwise have to deliver. Section XII provides that a SAR is exercisable only to the extent that the option in which it is included is still exercisable. With a modification not relevant here, the closing price of Exxon shares on the New York Stock Exchange on the trading day preceding the date of exercise of the SAR is used for purposes of valuation. To understand these incentive programs, their effect and purpose, some general observations may be helpful. The larger, more profitable American corporations which have achieved their success against overwhelming international competition, have done so through the efforts of highly skilled, experienced managerial and executive personnel who generally have little or no ownership of the business and no share in the customary rewards of shareholders. Keeping the high level of motivation of these employees, retaining their loyalty in the future, and protecting their skills, experience and specialized knowledge from raids by competitors or others, is the biggest single responsibility of top management, which naturally is also interested in its own compensation. Vengeful, progressive income taxes directed against the managerial class have made it impractical to motivate and reward solely with large salary payments. Their net effect after taxes soon becomes marginal, costing the corporation more than it brings to the executive. Also, other incentives costing less may be more effective than mere salary, or may be tied in more directly with such matters as corporate earnings, and stock market performance. Because the problems of management incentives, and the need to hold experienced employees, are so great, Exxon, like most organizations of its size, had a full time executive, whose title was “Senior Advisor Executive Compensation.” Until his retirement on February 1, 1976, the witness James F. Moore held this position. Supervising a staff of eight or nine employees, Moore was responsible for programs leading to fixing salaries for approximately 3,000 senior executives of Exxon, and for developing and implementing, under direction of the Board of Directors, incentive programs involving stock options, bonuses, pensions, insurance, employee benefits, and whatever other means his ingenuity and research or that of Exxon’s competitors" }, { "docid": "11360991", "title": "", "text": "the remaining claims, insofar as they are part of the same case or controversy from which the federal claim arises. B. Facts For the purposes of a motion to dismiss, this Court accepts allegations in the com plaint as true and draws all inferences in favor of the plaintiff. Garrett v. Tandy Corp., 295 F.3d 94, 97 (1st Cir.2002). The facts below are recited in light of this standard. A stock option is the right to purchase stock in a corporation for a specified period of time at a fixed price (the “exercise price”). Am. Compl. [Doc. 35] ¶ 3. When the market price exceeds the exercise price, an option holder can profit by exercising his option, purchasing stock from the corporation, and reselling it at the (higher) market price. See id. The exercise price generally equals the stock’s market price on the date that the stock option is granted. Id. In order to increase the value of stock options, however, “backdating” is sometimes used. Instead of recording the date on which the option was actually granted, the corporation manipulates the option by listing an earlier date on which the market price of the stock was lower, which accordingly sets a lower (and more advantageous for the option holder) exercise price. See id. ¶¶ 3-4. Staples, a Delaware corporation with its principal executive offices in Framingham, Massachusetts, id. ¶ 23, grants stock options to strengthen its ability to attract and retain key officers, senior managers, and employees who are expected to contribute to the company’s growth and success. Id. ¶¶ 9, 12, 75. It does so pursuant to two stockholder-approved plans: the 1987 Stock Option Plan and the 1992 Equity Incentive Plan (collectively, “the Plans”). Id. ¶ 74. The Plans state that the exercise price of a stock option “may not be less than 100% of the fair market value of the Company’s Common Stock” on the date of the grant. Id. ¶¶ 77, 80. Fair market value is defined as “the last reported sale price per share of such series of Common Stock on the Nasdaq National Market on" }, { "docid": "17267136", "title": "", "text": "their shares at low-price point. Furthermore, if a corporate decision will have a materially detrimental impact on the director, but not the corporation or its stockholders, a director can be considered interested. Ibid. Thus, a decision now to correct the grant dates would have a detrimental impact on the directors by removing the financial benefit of the backdating. The director may be required to pay back the difference in price between the true grant date and the purported grant date. The directors may even face legal exposure. Accordingly, if plaintiffs can plead with particularity that the directors received backdated grants, those directors will be considered interested. In Ryan v. Gifford, 918 A.2d 341 (Del. Ch.2007), a Delaware court held that knowing approval of backdated option grants by a board majority, along with intentional failure to disclose them in required financial disclosures, would excuse demand. The Ryan plaintiffs relied heavily on empirical analysis that compared the annualized returns calculated from the purported grant dates versus the annualized returns for the stock itself. This method was a way to measure how much financial advantage the recipient gained from receiving allegedly backdated options. The purported grant dates yielded a return higher than the stock’s annualized return by a factor of ten. Additionally, the plaintiffs there alleged that stock options were not granted pursuant to an overall plan, but were granted sporadically. Here, plaintiff has retained an independent expert who performed statistical analyses of Zoran’s options granting practices. Plaintiff also pleads facts regarding the stock-option plans under which the relevant grants were made. A. Accounting Treatment of Stock Options. At all times relevant to this action, the reporting of expenses associated with stock options was governed by Accounting Principles Board Opinion No. 25, “Accounting for Stock Issued to Employees,” and Financial Accounting Standards Board Principle No. 123. The operation of these rules was summarized in In re CNET Networks Inc. S’holder Deriv. Litig., 483 F.Supp.2d 947, 954-57 (N.D.Cal.2007). Briefly, whether or not a company must recognize a compensation expense for stock options depends on a comparison of the option’s price and the stock’s market" }, { "docid": "22771544", "title": "", "text": "Mr. Justice Black delivered the opinion of the Court. This case involves the federal income tax liability of respondent LoBue for the years 1946 and 1947. From 1941 to 1947 LoBue was manager of the New York Sales Division of the Michigan Chemical Corporation, a producer and distributor of chemical supplies. In 1944 the company adopted a stock option plan making 10,000 shares of its common stock available for distribution to key employees at $5 per share over a 3-year period. LoBue and a number of other employees were notified that they had been tentatively chosen to be recipients of nontransferable stock options contingent upon their continued employment. LoBue’s notice told him: “You may be assigned a greater or less amount of stock based entirely upon your individual results and that of the entire organization.” About 6 months later he was notified that he had been definitely awarded an option to buy 150 shares of stock in recognition of his “contribution and efforts in making the operation of the Company successful.” As to future allotments he was told “It is up to you to justify your participation in the plan during the next two years.” LoBue’s work was so satisfactory that the company in the course of 3 years delivered to him 3 stock options covering 340 shares. He exercised all these $5 per share options in 1946 and in 1947, paying the company only $1,700 for stock having a market value when delivered of $9,930. Thus, at the end of these transactions, LoBue’s employer was worth $8,230 less to its stockholders and LoBue was worth $8,230 more than before. The company deducted this sum as an expense in its 1946 and 1947 tax returns but LoBue did not report any part of it as income. Viewing the gain to LoBue as compensation for personal services the Commissioner levied a deficiency assessment against him, relying on § 22 (a) of the Internal Revenue Code of 1939, 53 Stat. 9, as amended, 53 Stat. 574, which defines gross income as including “gains, profits, and income derived from . . . compensation" }, { "docid": "9538203", "title": "", "text": "sale was made on that date. The stock certificate in completion of the sale was delivered to the registrar on July 22. M.M.M. has at no time questioned the right of the taxpayer to receive the 1000 shares of stock upon the exercise of his option. Upon taxpayer’s exercise of the option and the payment of the option price, M.M.M. was under a binding obligation to carry out its contract and deliver taxpayer 1000 shares of stock. The Commissioner relies upon the language in § 8 of the plan and § 11 of the contract heretofore quoted to the effect that a party having an option right shall have no interest in shares until the certificates for said shares are issued. Preceding the quoted language appear statements to the effect that M.M.M. shall not be required to deliver the stock due upon option prior to the admission of such shares to listing on the stock exchange, and providing further that if advised by counsel that the shares deliverable are required to be registered by federal law or sold only by prospectus, delivery of the stock may be deferred until the registration is effected or the prospectus is available, but that the company will proceed with diligence to meet all such requirements. Thus, it would seem that the provisions relied upon by the Com missioner were placed in the instruments to protect the company against violations of registration or securities laws and regulations. The Commissioner also relies upon a statement in § 5 of the plan to the effect: “Participant shall obtain no rights as a stockholder until shares are issued to him.” Apparently this is in accordance with the general policy that a person is not entitled to exercise rights as a stockholder until his stock is duly registered upon the corporate books. The taxpayer is not here attempting to exercise any stockholder rights. In any event, we do not deem this provision inconsistent with the taxpayer’s acquisition of an equitable interest in the stock or substantial contract rights therein. The Tax Court held that the time of acquisition of" }, { "docid": "17354030", "title": "", "text": "employment under his employment agreement of April 22,1957, with Edison. The fair market value of the 6,494 shares of Colgate stock received by petitioner on January 15,1960, was $34% per share. OPINION The issues are whether petitioner realized taxable gain in 1960 upon the exchange of an option to purchase a 20-percent interest in the Edison Co. in exchange for stock of Colgate, and if so, the amount thereof, and whether the gain is taxable as ordinary income or capital gain. Neither party suggests that the option here involved was a stock option to which section 421 of the Code would apply, so we are not concerned with employee stock options which have been given special treatment under sections 421-425 of the Code. Applicability of Section 354(a) (7) Petitioner contends primarily that the exchange in 1960 was nontaxable under section 354(a) (1) of the Code, which provides that no gain, or loss shall be recognized if stock or securities in a corporation a party to a reorganization are, in pursuance of a plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization. Petitioner claims that he, in substance, exchanged 20 percent of the stock of Edison, Inc., for 6,494 shares of Colgate stock in a reorganization as defined in section 368. We do not agree that the words “stock or securities” as used in section 354(a) (1) can be interpreted to include the mere right to acquire stock under an unexercised option such as the one here involved. Petitioner’s option was to acquire a 20-percent interest in an unincorporated business. But even if this is interpreted to give him an option to acquire 20 percent of the stock of the corporation formed to take over the business, petitioner did not exercise that option and never acquired any stock of Edison, Inc. Instead he assigned all Ms rights in the contract of April 22,1957, to Colgate in exchange for Colgate stock. Nor can it be said that petitioner had an equitable interest in 20 percent of the Edison, Inc., stock," }, { "docid": "13528277", "title": "", "text": "in 1978 General Dynamics began to take steps in preparation for declaring a cash dividend in 1979.' Between December 6 and December 29, 1978, without disclosing that a payment of a dividend was being considered, the corporation purchased 157,500 shares of its common stock on the open market. The shares were allegedly purchased for its management incentive stock program. It was not until January 4, 1979; that General Dynamics disclosed its intention to declare a dividend. On that date the General Dynamics board unanimously approved the dividend plan whereby a $3 dividend would be paid for each presplit common share and at the same time there would be a 2V2 for 1 stock split. Thereafter, the common stock went from 81V8 to 89% on January 5, 1979, the day after the announcement. The plaintiff, Donald Laventhall, purchased ten call options on the Chicago Board of Options Exchange issued by the Options Clearing Corporation on October 13, 1978, at a total price of $5500. These options gave Laventhall the right to purchase 1000 shares of General Dynamics Corporation common stock at $90 per share until February 17, 1979. Laventhall never exercised his options and sold them on the morning of January 4, 1979, for $1875. Discussion. The fundamental issue relates to Laventhall’s standing as an options holder to bring suit against a corporation trading solely in common stock. The district court found he had no standing. Although we find the issue not free from doubt, we affirm the judgment of dismissal of the district court. Section 10(b) of the Securities Exchange Act of 1934 provides: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the" }, { "docid": "11360992", "title": "", "text": "actually granted, the corporation manipulates the option by listing an earlier date on which the market price of the stock was lower, which accordingly sets a lower (and more advantageous for the option holder) exercise price. See id. ¶¶ 3-4. Staples, a Delaware corporation with its principal executive offices in Framingham, Massachusetts, id. ¶ 23, grants stock options to strengthen its ability to attract and retain key officers, senior managers, and employees who are expected to contribute to the company’s growth and success. Id. ¶¶ 9, 12, 75. It does so pursuant to two stockholder-approved plans: the 1987 Stock Option Plan and the 1992 Equity Incentive Plan (collectively, “the Plans”). Id. ¶ 74. The Plans state that the exercise price of a stock option “may not be less than 100% of the fair market value of the Company’s Common Stock” on the date of the grant. Id. ¶¶ 77, 80. Fair market value is defined as “the last reported sale price per share of such series of Common Stock on the Nasdaq National Market on the date of grant.” Id. ¶ 80. Staples’s Compensation Committee has the sole authority to select the date on which a stock option is granted. Id. ¶ 87. Its decisions are made with the knowledge and approval of the Board of Directory (“Board”). Id. ¶ 83. Between 1994 to 2003, the Compensation Committee approved fifty-one stock option grants. Id. ¶ 85. Of these, eleven coincided with dates having particularly low stock prices. Id. In 2006, the practice of backdating stock options was publicly identified, spurring the Securities and Exchange Commission (“SEC”) to investigate the phenomenon. See id. ¶¶ 5, 10. Staples was not a target of any government inquiry, but it, like many other companies, decided to conduct an internal review of its accounting procedures. See id. ¶ 13, 70. On November 14, 2006, Staples released the results of its review of stock option granting practices from 1997 to the third quarter of 2006. Id. ¶ 13. As a result of the audit, Staples “recorded a $10.8 million expense ($8.6 million net of taxes) ..." }, { "docid": "668143", "title": "", "text": "Exxon’s directors made illegal gifts of its assets and committed waste, in violation of various provisions of state corporation law. Furthermore, plaintiff claims that the extension of the lapse period of the options issued to defendant J. Kenneth Jamieson from three months (or less) to one year after normal retirement was made without consideration to the corporation and constituted corporate waste and mismanagement. Factual Background. After the shareholders approved the 1973 Incentive Program in May 1973, the Board Compensation Committee and the COED Committee voted to offer to extend the life of unexercised five-year qualified options issued in 1968 to ten years from the date of issuance. These options were scheduled to expire on December 9, 1973. The Corporation then solicited each 1968 option holder in order to determine who among them wished to have their options extended. These option holders were informed that if extended their qualified options would automatically become non-qualified, and any resulting gain upon the sale or exchange of the stock would be treated as ordinary income rather than capital gain. On August 6,1973, when the Board finally voted to extend the terms of these options, the price of Exxon stock was $93. per share and the exercise price of the 1968 option was $83.25. Although 25 employees including eight directors were offered the extension, only 22 (six directors) accepted the offer. More or less the same procedure was followed in the Fall of 1974 when the granting committees solicited the holders of unexercised five-year qualified options issued on November 26, 1969. All of the 20 employees who held outstanding 1969 options requested and received these extensions. It should be noted that the exercise price of these options was $61.13 per share and that on November 25, 1974, when the final vote was taken, the price of Exxon stock was $59.75 per share. All options issued under the 1968 and 1973 Plans had a lapse provision applicable after the employee terminated his employment relationship with Exxon. Assuming normal termination due to retirement, options under either Plan were scheduled to lapse one year after such termination or" }, { "docid": "17354029", "title": "", "text": "sale were reported in the amount of $14,694.82. In determining the deficiency here involved, respondent determined that in 1960 petitioner realized gain, which constituted ordinary income, in the amount of $236,828.13 from the receipt of 6,494 shares of Colgate stock, computed as follows: Value of 6,494 shares at $39%o per share_$253, 671. 88 Less: Expenses_ 16, 843. 75 Gain taxable as ordinary income_ 236, 828.13 In his petition herein petitioner alleged that he received no income on the receipt of 6,494 shares of Colgate in 1960 because it was a tax-free exchange and claimed a refund of $59,094.02 for overpayment of taxes for 1960. ULTIMATE FINDINGS OF FACT Petitioner did not exchange stock of Edison, Inc., for stock of Colgate in 1960 but exchanged an option to acquire a 20-percent interest in the business of Edison Co., or its successor, for 6,494 shares of Colgate stock. The option to purchase a 20-percent interest in the business of Edison Co. had no readily ascertainable market value at the time it was granted. Petitioner had only one employment under his employment agreement of April 22,1957, with Edison. The fair market value of the 6,494 shares of Colgate stock received by petitioner on January 15,1960, was $34% per share. OPINION The issues are whether petitioner realized taxable gain in 1960 upon the exchange of an option to purchase a 20-percent interest in the Edison Co. in exchange for stock of Colgate, and if so, the amount thereof, and whether the gain is taxable as ordinary income or capital gain. Neither party suggests that the option here involved was a stock option to which section 421 of the Code would apply, so we are not concerned with employee stock options which have been given special treatment under sections 421-425 of the Code. Applicability of Section 354(a) (7) Petitioner contends primarily that the exchange in 1960 was nontaxable under section 354(a) (1) of the Code, which provides that no gain, or loss shall be recognized if stock or securities in a corporation a party to a reorganization are, in pursuance of a plan of reorganization," }, { "docid": "17010610", "title": "", "text": "analysis.”) (citing Correia v. Fitzgerald, 354 F.3d 47, 53 (1st Cir.2003)). A. Breach of Contract and Promissory Estoppel 1. Affirmative Misrepresentation At the heart of both House’s breach of contract and promissory estoppel claims is the proposition that the Company represented to him that he would have ten years to exercise his ISOs. Even if the Company had affirmatively represented to House that he had ten years in which to exercise his ISOs even after terminating his employment, any such representations would have been contrary to the Plan approved by the Company’s board of directors, which only permitted a three-month period for the exercise of House’s ISOs after departure. As we describe below, Delaware law requires that the terms and conditions of stock options be governed by a written, board-approved Plan. 2. Delaware Corporate Law Pursuant to Delaware Law, “every corporation may create and issue ... rights or options ... such rights or options to be evidenced by or in such instrument or instruments as shall be approved by the board of directors.\" Del.Code Ann. tit. 8, § 157(a)(emphasis added). Delaware courts have observed that this rule was designed to serve the important policy goal of “preserving] the board’s broad authority over the corporation and ... protecting] the certainty of investors’ expectations regarding stock.” Grimes v. Alteon, Inc., 804 A.2d 256, 258 (Del.2002); see also STAAR Surgical Co. v. Waggoner, 588 A.2d 1130, 1136 (Del.1991) (“The issuance of corporate stock is an act of fundamental legal significance having a direct bearing upon questions of corporate governance, control and the capital structure of the enterprise. The law properly requires certainty in such matters.”). Here the Plan’s explicit three-month time limit for the exercise of ISOs held by employees who resign would thus supersede any other non-board-approved communications about the expiration of the ISOs. We note that Delaware courts have adhered to statutory requirements respecting stocks when denying claims for equitable relief — “even in situations when that might generate an inequitable result.” Liebermann v. Frangiosa, 844 A.2d 992, 1004 (Del.Ch.2002); see also STAAR Surgical Co., 588 A.2d at 1137 (directing that" }, { "docid": "13606636", "title": "", "text": "were conservative in their expectations and predictions. To encourage such men, they are often granted stock options with the consent of the shareholders. While stock options now have a large attraction for their tax avoidance advantages (M. W. McCarthy, Chapter on Top Management’s Stake in the Securities Market, in H. B. Maynard, Top Management Handbook, 1040, 1048 (1960)), they still are granted on the assumption that the executives will retain and “increase their ownership interest” and that this will help motivate them to improve the company. A. P. Sloan, Jr., My Years With General Motors, 415 (1964). “Many stockholders feel that directors and officers should have a meaningful investment in the companies they manage. . . . The Exchange has encouraged the broadening of share-ownership through stock option . . . plans.” New York Stock Exchange, The Corporate Director and the Investing Public, 11 (1965). It is significant that the defendants in the case at bar, as a group, and particularly those actually running the corporation, substantially increased their holdings during the period about which plaintiffs complained. To take advantage of these options many managers must borrow. Some —as in the instant case — engage in a conservative plan of selling part of their stock after they have held their shares for six months to take advantage of tax benefits and to avoid liability under section 16(b) of the Securities Exchange Act, paying off their loans and exercising new options so that they gradually build up their holdings without assuming huge debts. Id. at 12. Cf., Abrams v. Occidental Petroleum Corp., 450 F.2d 157 (2d Cir. 1971). These insiders are also encouraged to issue information and to open their doors to analysts so that relations with money markets will remain good and so that money for plant expansion — amounting to yearly expenditures of hundreds of millions of dollars for some companies —will be available when needed. New York Stock Exchange, The Corporate Director and The Investing Public, 4-5 (1965); Report of the Special Study of the Securities Markets and Exchange Commission, H.R.Doe.No.95, 88th Cong., 1st Sess.; pt. 3, 65" }, { "docid": "18008789", "title": "", "text": "by the broad exemptions of employee stock purchase options granted by Rule X-16B-3. To illustrate, Director Y of Company X has the right to exercise stock purchase options. Let us assume that Company X announces to the public an impending merger or the negotiation of a large government contract, the news of which stimulates a significant increase in the market price of X’s stock. Director Y, with no intention of defrauding the public or the corporation, immediately thereafter exercises his options and acquires a substantial amount of stock in X. Within a short time thereafter Director Y, through access to inside information, learns that the anticipated merger or contract has fallen through. Before this information is communicated to the public, Y sells his recently acquired stock at the market peak. The public is subsequently informed and the market price of X stock declines accordingly. It would seem to us that such an opportunity for profit-taking by insiders in a temporary and artificially stimulated market would be minimized, in accord with the purpose of section 16(b), by a requirement that insiders who acquire corporate stock by the exercise of employee options pursuant to a plan such as that at bar must retain their stock for at least six months after its acquisition or, in the event of their failure to do so, must account to the corporation for the profits resulting from the sale thereof. The defendants argue that it is “improbable” that an option grantee would sell shares within six months after exercising his option because he would thereby lose the favorable tax treatment provided for him by section 130A of the Internal Revenue Code of 1939, now 26 U.S.C. § 421. But the improbability that individual benefits may flow from usurped authority does not make the usurpation any more permissible. The possible inhibiting effects of tax provisions upon the security transactions of insiders is a matter completely apart from that of defining the power of the Securities and Exchange Commission to promulgate a regulation that may permit an abuse sought to be eliminated by section 16(b) of the very" }, { "docid": "668134", "title": "", "text": "of the option is fully compensated for by the exercise of the SARs, and no loss is suffered by the holder whether he exercise the SAR, or the option. Of course that is all he ever had — the right to choose which of the two joined rights he would exercise, the option right, or the stock appreciation right. On this, the Incentive Plan is clear. It reads in relevant part (May 17,1973 Notice of Annual Meeting and Proxy Statement, p. 50): “XII. Stock Appreciation Rights. Any option granted under a shareholder approved stock option plan may include a stock appreciation right, either at the time of grant or by amendment. Such stock appreciation right shall be subject to such terms and conditions not inconsistent with the relevant Plan, as the granting authority shall impose, including the following: (1) A stock appreciation right shall be exercisable to the extent, and only to the extent, the option is exercisable. (2) A stock appreciation right shall entitle the optionee to surrender to the Corporation unexercised the option in which it is included, or any portion thereof, and to receive from the Corporation in exchange therefor that number of shares having an aggregate value equal to the excess of the value of one share over the purchase price per share specified in such option times the number of shares called for by the option, or portion thereof, which is so surrendered.” Neither the precise words of the Plan, nor the economic effect of the transaction require us to distort an election between two methods of previously granted executive incentive compensation, and a surrender or lapse of the alternative not so chosen, into a purchase or sale not made. In any event it is clear that the optionee has not sold the surrendered option to the corporation; nor has Exxon in any real or fancied sense bought it. It has merely become forever extinguished, because of an election by the owner to enjoy the SAR instead. Plaintiff’s attempt to characterize such a choice not to exercise the stock option in lieu of the SAR" }, { "docid": "6753451", "title": "", "text": "On July 8, 1974, the Corporation publicly disclosed its intention to make a tender offer for the purchase of 2,300,000 of its shares at $25 per share, whereupon public trading in the stock resumed. The closing price for Zapata on July 8 was $24.50 per share. The purpose and effect of the eleventh-hour amendments to the stock option plan was to permit the Corporation’s six senior officers to benefit at Zapata’s expense. Under applicable federal tax laws an employee who exercises stock options such as those received by the six senior officers realizes ordinary income in the amount of the difference between the fair market price of the stock at the time the option is exercised and the option price paid for the stock (the “bargain spread”). I.R.C. § 83(a), Treas.Reg. § 1.421-6(d); see Commissioner of Internal Revenue v. LaBue, 351 U.S. 243, 76 S.Ct. 800, 100 L.Ed. 1142 (1956). The corporation, on the other hand, is entitled to deduct the bargain spread as a business expense, it being considered a form of compensation to its employees. I.R.C. § 83(h), Treas.Reg. § 1.421-6(f); see Divine v. Commissioner of Internal Revenue, 500 F.2d 1041, 1050-57 (2d Cir. 1974). By accelerating the exercise date of the last installment of the options and thus allowing the six officers to exercise their options prior to the foreseen imminent rise in the market price of Zapata stock, the Board permitted the six officers to save themselves a considerable amount of tax liability, and prevented the Corporation from enjoying a correspondingly higher tax deduction, assuming the six officers would have exercised their f > options on or after the originally scheduled date, July 14, 1974. Given the fact that the market price immediately after the announcement of the tender offer became, as anticipated, more than double the option price, this appears to be a safe assumption. DISCUSSION We first turn to appellants’ contention that defendants violated Rule 10b-5 by modifying Zapata’s stock option plan so that they could exercise their options immediately and profit at the Corporation’s expense. The Exchange Act “protects corporations as well as" }, { "docid": "6141545", "title": "", "text": "petitioners’ attorney’s fees incurred in connection with this case. FINDINGS OF FACT Some of the facts have been stipulated and are found accordingly. Petitioners Aaron L. Kolom and Serita Kolom, husband and wife, resided in Los Angeles, Calif., at the time they filed the petition in this case. They timely filed their Federal income tax return for the calendar year 1972. Petitioners signed their 1972 return on April 5,1973. During the year 1972, Aaron L. Kolom (hereinafter petitioner) was an officer and director of Tool Research & Engineering Corp. (hereinafter Tool Research), a corporation duly formed and organized under the laws of the State of Delaware. As of 1972, Tool Research was a corporation registered under section 12, Securities Exchange Act of 1934,15 U.S.C. sec. 781. On November 6, 1968, Tool Research’s Stock Option Committee, pursuant to the employees’ stock option plan which met the qualification requirements of section 422, granted petitioner an option to purchase 2,000 shares of $1 par value Tool Research capital stock at an option price of $44 per share. The option continued for a term of 5 years, and was exercisable in whole or in part in installments of 25 percent at the time the option was granted, 25 percent at the end of the first year, 25 percent at the end of the second year, and the final 25 percent at the end of the third year. If petitioner did not exercise the full 25 percent in any one year, his rights the following years were to be cumulative. In accordance with the terms of Tool Research’s Employees’ Stock Option Plan, the option could not be exercised more than 5 years from the date of the grant thereof. In addition, the option could not be exercised if there were outstanding any qualified stock option granted before the grant of the option of November 6, 1968. On February 23, 1970, petitioner was granted an additional option for the purchase of 5,000 shares of Tool Research stock at an option price of $13,375 per share. On January 29, 1971, petitioner was granted another option for the" }, { "docid": "668088", "title": "", "text": "measured by the difference between the option price and the fair market value of the stock. The corporation enjoys an income tax deduction for this same amount, but receives no deduction in connection with exercise by an employee of a qualified option. Neither the grant nor the exercise of a qualified or non-qualified option has any effect on the corporation’s stated earnings or its profit and loss statement. The stock delivered to the employee comes from the capital account; in the case of a qualified option, that account is debited for the market value of the shares and then credited for the amount of the cash paid in by the employee, so that the net debit or decline in corporate net worth is the spread between the option price of the shares and their market value. For a non-qualified option, the same adjustment is made with respect to the capital account, except that the decline in net worth is less, because the tax deduction which the corporation receives upon exercise is also credited to the capital account. In October 1970 the Board of Directors amended the 1968 Stock Option Plan. The purpose of this amendment, authorized by Section XX of the Program, was to take advantage of an IRS ruling which permitted the issuance of combination options. Such an option is a simultaneous grant of a qualified and a non-qualified option for the same underlying shares. While only one of the options could actually be exercised as to any particular optioned share, and once exercised, would reduce pro tanto the number of shares available under the other type of option, the combination option gives the individual greater flexibility in planning the tax and other financial consequences. He can defer his choice between a qualified or non-qualified option from the date of grant to time of exercise. However, due to a change in tax rulings, no combination options were issued by Exxon after January 1973. Of the 1,500,000 shares authorized under the 1968 Incentive Program,- 1,485,090 shares (approximately 99%) had been awarded by the end of 1972, five months prior to" }, { "docid": "668087", "title": "", "text": "annual grants of stock options. Under the 1968 Incentive Program, after a decision to award stock options had been made by the granting authority (COED or BCC), an employee with a base salary of $50,000. or more (raised in 1973 to $60,000.) was contacted by the- Executive Compensation Staff and was allowed to choose between accepting a qualified option, a non-qualified option, or between 1970 and 1972, a combination option. Employees with salary below $50,000. were awarded non-qualified options, except that between 1970 and 1972 they too were given the choice between non-qualified and combination options. Qualified options, which were designed to fit Section 422 of the Internal Revenue Code, had a term of five years from the date of grant. Upon exercise, if the individual held the acquired stock for more than three years, any gain on the ultimate sale or exchange of that stock would qualify for long-term capital gains treatment. Non-qualified options had a ten year term from the date of grant. Upon exercise of the option, the individual realizes ordinary income measured by the difference between the option price and the fair market value of the stock. The corporation enjoys an income tax deduction for this same amount, but receives no deduction in connection with exercise by an employee of a qualified option. Neither the grant nor the exercise of a qualified or non-qualified option has any effect on the corporation’s stated earnings or its profit and loss statement. The stock delivered to the employee comes from the capital account; in the case of a qualified option, that account is debited for the market value of the shares and then credited for the amount of the cash paid in by the employee, so that the net debit or decline in corporate net worth is the spread between the option price of the shares and their market value. For a non-qualified option, the same adjustment is made with respect to the capital account, except that the decline in net worth is less, because the tax deduction which the corporation receives upon exercise is also credited to the" }, { "docid": "14878350", "title": "", "text": "WESTOVER, District Judge. The plaintiff in the above entitled actions had among its personnel some sixteen key employees. Being unable to pay its employees additional compensation to induce them to remain in the employ of plaintiff corporation in such key positions, in lieu thereof the corporation gave to each of its sixteen key employees an option agreement, covering a period of five years, which gave to these key employees the right to purchase, at a price of $5.00 .per share, certain shares of plaintiff corporation’s common capital stock, having a par value of $1.00 per share. Among other things, it was provided that the option agreement should not be effective for any purpose unless and until proper permits were obtained from the Commissioner of Corporations of the State of California, authorizing the granting by said corporation of the options and authorizing the issuance of the stock of plaintiff corporation pursuant to the provisions of said options; and the options were terminated if these employees did not remain in the service of plaintiff corporation. Plaintiff filed petitions with the Corporation Commissioner of the State of California, asking for authority to grant the options herein mentioned and to issue the stock, if and when the options were exercised. The petitions were granted by the Corporation Commissioner. There is nothing in this case to indicate that defendants were anything but conscientious, honest employees. They were in no respect stock market manipulators. Evidence in the case indicates that the idea of the stock option contracts originated with Philip S. Fogg, President of Consolidated Engineering Corporation, prior to the listing of plaintiff’s stock on any national exchange, as a means of retaining the services of the sixteen key men and as incentive to these men to use their best efforts for the benefit of the corporation. Included among the sixteen were the three defendants in these actions, they being the only employees holding the conventional titles of officers of the corporation. At the time the option agreements were executed they had little value. After the options acquired a value (because of the rise in value" } ]

[ { "docid": "22439544", "title": "", "text": "private contracts the only stabilizing factor under the Act. Not only does this reading have nothing to do with the integrity of private contracts which Mobile underwrote, but it makes a severe incursion into the sources of that stability of natural-gas prices and supply to which that decision gave confirmation. Our consideration of this, as well as the rest of petitioner’s arguments, leads us to reiterate as our holding the clear implication of what we recently said in Cateo: An initial application of an independent producer, to make movements of natural gas in interstate commerce, leads to a certificate of public convenience and necessity under which the Commission controls the basis on which “gas may be initially dedicated to interstate use. Moreover, once so dedicated there can be no withdrawal of that supply from continued interstate movement without Commission approval. The gas operator, although to this extent a captive subject to the jurisdiction of the Commission, is not without, remedy to protect himself.” 360 U. S., at 389. That remedy he has, as the Court there said, in the “change” power -under § 4 (d) when his contract has expired or where his contract permits its use during its term. Under a similar Act, this Court has held to the same effect as we hold today. Pennsylvania Water & Power Co. v. Federal Power Comm’n, 343 U. S. 414, 423-424. II. Once the power of the Commission to issue the certificate without time limitation is established, the other objections of the petitioner fall readily. It is contended that the Commission’s order, by requiring the petitioner to supply gas beyond the term of its contract, may, by requiring petitioner to produce more gas than it has contemplated, offend the provision of § 1 (b) of the Act that the Act does not apply “to the production or gath ering of natural gas.” The point was not raised before the Commission, and accordingly is not for our consideration here; and we might say in any event that the point is not for evaluation in this certification proceeding, but rather on the specific" } ]

[ { "docid": "22427169", "title": "", "text": "casinghead gas to the El Paso Natural Gas Co., an interstate pipeline. Thereafter, Gulf applied for, and the Federal Power Commission issued, a certificate of public convenience and necessity authorizing its sale of natural gas to El Paso, to be effective as long as Gulf continued its authorized operations in accordance with the statute and applicable regulations. See n. 13, infra. The price of the gas sold by Gulf to El Paso was then regulated by the Commission. The price of gas on the intrastate market was, however, not subject to such regulation. Shortly before the expiration of the leases, Southland and the other mineral fee owners therefore made plans to sell their casinghead gas in the intrastate market as soon as the leases expired. In order to preserve one of its sources of supply, El Paso filed a petition with the Commission seeking a determination that the leasehold gas had been dedicated to interstate commerce and could not be withdrawn from that market without Commission approval. The Commission held that Southland and the other mineral interest owners may not divert leasehold gas into the local market without prior Commission approval. The Commission noted that its decision was not supported by direct precedent, but reasoned that Gulf had made a dedication of the leasehold gas which imposed a service obligation on the gas itself, rather than on any particular party. On respondents’ petition for review, the Court of Appeals reversed. The court held that Gulf, as a tenant for a term of years, could not legally dedicate that portion of the gas which Southland and the other reversioners might own upon expiration of the lease. It rejected the Commission’s argument that since Gulf had an unquantified right during the 50-year term, it had a legal right to withdraw all of the leased gas, and therefore was empowered to dedicate the entire supply to the interstate market. The court reasoned that Gulf’s interest in the gas was contingent upon its removal within 50 years and that its right to dedicate the gas to interstate commerce was subject to the same contingency." }, { "docid": "23511613", "title": "", "text": "natural gas to pipelines for resale in interstate commerce must obtain a certificate of public convenience and necessity from FERC. Section 7(b) of the Act, 15 U. S. C. § 717f(b), obligates certificated producers to continue supplying gas in the interstate market until FERC authorizes an abandonment. See United Gas Pipe Line Co. v. McCombs, 442 U. S. 529 (1979); California v. Southland Royalty Co., 436 U. S. 519, 523-524 (1978). Although the NGPA eliminated FERC’s authority to control abandonment of deregulated gas, “old” Hugoton gas remains under FERC’s § 7(b) control. Appellant’s claims are, first, that a producer’s available reserves are a factor in FERC’s decision whether to certificate interstate service, and that an abandonment of gas without FERC’s approval undercuts FERC’s certification process; and, second, that permanent cancellation of underages under paragraph (p) will lead to drainage from reserves dedicated to interstate commerce to wells operated by currently overproduced operators who supply the intrastate market, thus effectuating the permanent abandonment of gas reserves certificated to the interstate market. Insofar as appellant’s argument is that cancellation of underages pursuant to paragraph (p) will work an abandonment through the noncompensable drainage of dedicated reserves, and that Kansas therefore regulates in a field Congress has fully occupied, it is plainly meritless. This is so even if it is assumed that permanent cancellation of underage will in fact occur under paragraph (p), and that the KCC’s belief that purchasers will instead increase their takes proves to have been too optimistic. The KCC’s regulation governs the rights of producers to take gas from the Hugoton field, and determining rates of production is a matter squarely within the State’s jurisdiction under NGA § 1(b). Supra, at 510-511. FERC’s abandonment authority necessarily encompasses only gas that operators have a right under state law to produce. Appellant’s premise — that the reserves of dedicated leases may not be abandoned without FERC approval — thus fails to support the conclusion it draws, for exactly what the producible reserves underlying a lease at any given moment consist in is a question of state law, settled in Kansas by" }, { "docid": "21882733", "title": "", "text": "of gas into interstate commerce, and not just an executory contract to make such a sale. See Falcon Petroleum v. FERC, 642 F.2d 780, 784 (5th Cir. 1981) (contract to sell gas into interstate commerce entered into before May 31, 1978, but gas was not being sold on that date). . Technically, the entire leasehold was surrendered to the Wylie Heirs. For purposes of this argument, however, this Court will collapse the transactions involved and treat the reversion as a severance of only the deep gas to the Wylie Heirs. . A partial reversion defined according to an undivided percentage or undivided fractional share in the leasehold would not be able to meet the exclusion’s “being sold” test in sub-clause II. The gas attributable to that interest cannot be separately identified; in other words, the interest is a share in all the gas under the leasehold, and therefore some of the reverted gas would be sold with the other gas. See California v. Lo-Vaca Gathering Co., 379 U.S. 366, 85 S.Ct. 486, 13 L.Ed.2d 357 (1965) (physical, molecular commingling of jurisdictional and nonjurisdictional gas will impose Commission jurisdiction over the otherwise nonjuris-dictional gas). Subclause II of the exclusion modifies the term “being sold” with the parenthetical qualification “within the meaning of the Natural Gas Act.” The “being sold” test thus adopts prior NGA case law, Note, The Meaning of the Southland Exclusion at 452, including the “commingling doctrine” of Lo-Vaca. . This interpretation is consistent with the ability of a producer to split his interest and dedicate only half to interstate commerce. See El Paso Natural Gas Co., FPC Opinion No. 737-A, 54 F.P.C. 917, 918 (1975), rev'd sub nom. Southland Royalty Co. v. FPC, 543 F.2d 1134 (5th Cir. 1976), rev’d sub nom. California v. Southland Royalty Co., 436 U.S. 519, 98 S.Ct. 1955, 56 L.Ed.2d 505 (1978) (4-3 decision). There is accordingly no inconsistency in the Allied Chemical Group being a subsequent grantee of the reversioner, and thus free of the original dedication with regard to the deep gas lease reserves, and being a successor in interest to" }, { "docid": "23511612", "title": "", "text": "true that there was some evidence before the KCC suggesting that some pipelines might not increase their takes in response to the possible cancellation of underages, and that correlative rights might thus be harmed as a result of the new regulation. See Northwest Central Pipeline Corp. v. Kansas Corp. Comm’n, 237 Kan., at 261-262, 699 P. 2d, at 1014. The KCC’s assumption that paragraph (p) would likely increase production was not implausible, however, and the Kansas Supreme Court specifically held that although the assumption was “controverted, there is evidence in the record to support [it].” 240 Kan., at 646, 732 P. 2d, at 780. We cannot conclude that paragraph (p) lacks a proper state purpose, nor that it is so weakly related to such purpose that, because of its effect on federally regulated purchasing practices and pricing, it must be pre-empted. c Northwest Central further argues that paragraph (p) is pre-empted by federal regulation of the abandonment of natural gas. Section 7(c) of the NGA, 15 U. S. C. §717f(c), requires that producers who sell natural gas to pipelines for resale in interstate commerce must obtain a certificate of public convenience and necessity from FERC. Section 7(b) of the Act, 15 U. S. C. § 717f(b), obligates certificated producers to continue supplying gas in the interstate market until FERC authorizes an abandonment. See United Gas Pipe Line Co. v. McCombs, 442 U. S. 529 (1979); California v. Southland Royalty Co., 436 U. S. 519, 523-524 (1978). Although the NGPA eliminated FERC’s authority to control abandonment of deregulated gas, “old” Hugoton gas remains under FERC’s § 7(b) control. Appellant’s claims are, first, that a producer’s available reserves are a factor in FERC’s decision whether to certificate interstate service, and that an abandonment of gas without FERC’s approval undercuts FERC’s certification process; and, second, that permanent cancellation of underages under paragraph (p) will lead to drainage from reserves dedicated to interstate commerce to wells operated by currently overproduced operators who supply the intrastate market, thus effectuating the permanent abandonment of gas reserves certificated to the interstate market. Insofar as appellant’s argument is" }, { "docid": "22427150", "title": "", "text": "order was under review would not constitute a dedication of those reserves to the interstate market. El Paso Natural Gas Co., 54 F. P. C. 2821, 11 P. U. R. 4th 488 (1975). On respondents’ petition for review, the Court of Appeals for the Fifth Circuit reversed. Southland Royalty Co. v. FPC, 543 F. 2d 1134 (1976). The court held that Gulf, as a tenant for a term of years, could not legally dedicate that portion of the gas which Southland and other respondents might own upon expiration of the lease. Because of the importance of the question presented to the authority of the Federal Power Commission, now the Federal Energy Regulatory Commission, we granted the petition for certiorari. 433 U. S. 907. We reverse. The fundamental purpose of the Natural Gas Act is to assure an adequate and reliable supply of gas at reasonable prices. Sunray Mid-Continent Oil Co. v. FPC, 364 U. S. 137, 147, 151-154 (1960); Atlantic Refining Co. v. Public Serv. Comm’n of New York, 360 U. S. 378, 388 (1959). To this end, not only must those who would serve the interstate market obtain a certificate of public convenience and necessity but also, under § 7 (b) of the Act: “No natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the con tinuance of service is unwarranted, or that the present or future public convenience or necessity permit such abandonment.” 15 U. S. C. § 717f (b) (1976 ed.). The Commission may therefore control both the terms on which a service is provided to the interstate market and the conditions on which it, will cease: “An initial application of an independent producer, to make movements of natural gas in interstate commerce, leads to a certificate of public convenience and necessity under which the" }, { "docid": "21882734", "title": "", "text": "(1965) (physical, molecular commingling of jurisdictional and nonjurisdictional gas will impose Commission jurisdiction over the otherwise nonjuris-dictional gas). Subclause II of the exclusion modifies the term “being sold” with the parenthetical qualification “within the meaning of the Natural Gas Act.” The “being sold” test thus adopts prior NGA case law, Note, The Meaning of the Southland Exclusion at 452, including the “commingling doctrine” of Lo-Vaca. . This interpretation is consistent with the ability of a producer to split his interest and dedicate only half to interstate commerce. See El Paso Natural Gas Co., FPC Opinion No. 737-A, 54 F.P.C. 917, 918 (1975), rev'd sub nom. Southland Royalty Co. v. FPC, 543 F.2d 1134 (5th Cir. 1976), rev’d sub nom. California v. Southland Royalty Co., 436 U.S. 519, 98 S.Ct. 1955, 56 L.Ed.2d 505 (1978) (4-3 decision). There is accordingly no inconsistency in the Allied Chemical Group being a subsequent grantee of the reversioner, and thus free of the original dedication with regard to the deep gas lease reserves, and being a successor in interest to the original dedication with respect to the shallow gas lease reserves, which it has an interest in pursuant to a farmout from the Moffett Group. . This is because the NGPA definition of “committed or dedicated” and the NGPA’s exclusions from that definition are to be used only for purposes of applying the NGPA, and not for applying the NGA. Tenneco Exploration, Ltd. v. FERC, 649 F.2d 376, 380 (5th Cir. 1981). . Allied Chemical was plainly aware of this possibility since Allied’s attorneys investigated Columbia’s claim that the deep gas was dedicated before rejecting Columbia’s demands. . The doctrine of primary jurisdiction promotes proper relationships between the courts and administrative agencies. Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 303, 96 S.Ct. 1978, 1986, 48 L.Ed.2d 643 (1976). It is a discretionary tool of the courts, a flexible concept to integrate the regulatory functions of agencies into the judicial decision making process by having agencies pass in the first instance on technical questions of fact uniquely within the agency’s expertise and experience, or in" }, { "docid": "21882697", "title": "", "text": "Plauche Real Estate Co., 249 La. 85, 185 So.2d 210, 213 (1966); Rayford v. Louisiana Savings Association, 380 So.2d 1232, 1238 (La.App.), writ denied, 384 So.2d 793 (La.1980); La.Civ.Code Ann. art. 1957 & 1958. Had the author intended the term “inadvertence” to carry some meaning other than its common and usual meaning, it should have provided its own definition in the contract, rather than leave interpretation of the term open to construction based on the dictionary definition. Finding no fault with the reasoning of the district court, and concluding that the district court’s findings of fact are not clearly erroneous, this Court affirms the district court’s grant of summary judgment on the breach of contract claims. III. Violation of the NGA The concept of dedication of gas production to interstate commerce is grounded in NGA § 7, which requires that natural gas companies obtain certificates of public convenience and necessity prior to commencing interstate deliveries of natural gas, and that Commission authorization is necessary before deliveries of gas can be abandoned. Obtaining a certificate of public convenience and necessity, however, did not alone constitute dedication. Gas reserves under the certificate became dedicated to interstate commerce when physical delivery of gas commenced pursuant to the certificate. Tenneco Exploration, Ltd. v. FERC, 649 F.2d 376, 379-80 (5th Cir. 1981); Falcon Petroleum v. FERC, 642 F.2d 780, 784 (5th Cir. 1981); Conoco, Inc. v. FERC, 622 F.2d 796, 797 (5th Cir. 1980); Wessely Energy Corp. v. Arkansas Louisiana Gas Co., 593 F.2d 917, 920 (10th Cir. 1979) (per curiam). One of the most controversial decisions concerning the scope of the dedication obligation is California v. Southland Royalty Co., 436 U.S. 519, 98 S.Ct. 1955, 56 L.Ed.2d 505 (1978) (4-3 decision). In that case, a producer acquired a fifty-year oil and gas lease, entered into a gas purchase contract with an interstate pipeline, obtained a certificate from the FPC, and initiated deliveries of gas. When the lease expired, the producer-lessee’s interest in the remaining reserves reverted to the owners of the re-versionary mineral interest. The reversion-er contracted to sell its share of production to" }, { "docid": "1705736", "title": "", "text": "by the Natural Gas Act is paramount to any private contractual arrangement. This obligation, once imposed, requires the flow of gas to the interstate market until abandonment authorization has been obtained. Id. at 1958. We hold that the FERC did not err in that portion of its ruling regarding abandonment. II. Price Ceiling Under applicable FERC regulations, a small producer is allowed to charge a higher price for its gas than the price ceiling set by the Commission for large producers. 18 C.F.R. § 157.40(c). The higher rates are in recognition of the generally higher risks, higher costs, and lower production of the small company. See generally FPC v. Texaco Inc., 417 U.S. 380, 94 S.Ct. 2315, 41 L.Ed.2d 141. In anticipation of potential abuse, however, the FERC provided that the higher rates would not be available to a small producer whose gas reserves “were acquired by the purchase of developed reserves in place from a large producer.” 18 C.F.R. § 157.40(c) (emphasis added). In the order before us the FERC held that the Tribe’s election to take their royalty payments in kind rather than in cash was “tantamount to a purchase” of the gas from El Paso and Northwest within the meaning of § 157.40, thus disqualifying the Tribe from the small producer rates. With all due deference to the Commission’s interpretation, we must disagree. The provisions of the lease involved in this case are not disputed. The Tribe was to be paid a royalty of l/6th of the value or amount of all gas produced on the leased property. Section 4 of the lease provided: The lessor expressly reserves: (c) Royalty in kind — The right to elect on 30 days’ written notice to take lessor’s royalty in kind. We believe this express reservation of the unqualified right to take royalty in kind precludes a conclusion that the Tribe has in any way “purchased” this gas. We do not agree with the PERC’s characterization of the election as an exchange of cash for gas. There is no exchange involved here at all, much less an exchange which could" }, { "docid": "1705733", "title": "", "text": "payment in kind. It was the Tribe’s election to take its royalty in kind which was the genesis of this appeal. The Tribe intended initially (for about 18 months) to sell all of its royalty gas to El Paso and Northwest for resale in interstate commerce. Ultimately, however, the Tribe intended to use most of the gas for its own industrial needs on the reservation, selling only the amount unused to El Paso and Northwest on a day-to-day basis. The Tribe’s application for a certificate to authorize the sale of their gas was required under provisions of the Natural Gas Act. 15 U.S.C. §§ 717a(6), 717f(c). In the orders under review the FERC granted the Tribe a small producer certificate but restricted the price which could be charged for the royalty gas to the lower rate applicable to large producers. The FERC further held that the Tribe would have to obtain abandonment authorization pursuant to 15 U.S.C. § 717f(b) before it could remove the royalty gas from the interstate market and apply it to their own industrial needs. The Tribe objects to both of these requirements 6n appeal. I. Abandonment Authorization [1,2] Under 15 U.S.C. § 717f(b), no natural gas company may abandon all or any portion of any source rendered by means of facilities subject to the jurisdiction of the FERC without Commission approval. This provision has been most recently construed by the Supreme Court in California v. Southland Royalty Co., —— U.S. —— , 98 S.Ct. 1955, 56 L.Ed.2d 505, a case which is directly relevant to the issue before us. Southland Royalty restated the established rule that once natural gas is “dedicated” to interstate commerce under a certificate of public convenience and necessity, that gas may not be withdrawn from the interstate market without prior Commission approval. 98 S.Ct. at 1958, citing Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 156, 80 S.Ct. 1392, 4 L.Ed.2d 1623. The Tribe asserts this rules is inapplicable in this case because their royalty gas has never been dedicated to the interstate market. Their argument is premised on the fact" }, { "docid": "22427149", "title": "", "text": "to preserve one of its sources of supply, then filed a petition with the Commission seeking a determination that the remaining gas reserves could not be diverted to the intrastate market without abandonment authorization pursuant to § 7 (b) of the Natural Gas Act of 1938, 52 Stat. 824, as amended, 15 U. S. C. § 717f (b) (1976 ed.). The Commission agreed with this contention, relying on the “principle established by Section 7 (b) that 'service’ may not be abandoned without our permission and approval.” El Paso Natural Gas Co., 54 F. P. C. 145, 150, 10 P. U. R. 4th 344, 348 (1975). The Commission held that respondents could not, upon termination of the lease, sell gas in intrastate commerce without prior permission from the Commission under § 7 (b) of the Natural Gas Act and that Gulf was also obligated to seek abandonment permission. The Commission reaffirmed this view in an order denying rehearing, but added language insuring that any deliveries of gas to El Paso during the period that the Commission’s order was under review would not constitute a dedication of those reserves to the interstate market. El Paso Natural Gas Co., 54 F. P. C. 2821, 11 P. U. R. 4th 488 (1975). On respondents’ petition for review, the Court of Appeals for the Fifth Circuit reversed. Southland Royalty Co. v. FPC, 543 F. 2d 1134 (1976). The court held that Gulf, as a tenant for a term of years, could not legally dedicate that portion of the gas which Southland and other respondents might own upon expiration of the lease. Because of the importance of the question presented to the authority of the Federal Power Commission, now the Federal Energy Regulatory Commission, we granted the petition for certiorari. 433 U. S. 907. We reverse. The fundamental purpose of the Natural Gas Act is to assure an adequate and reliable supply of gas at reasonable prices. Sunray Mid-Continent Oil Co. v. FPC, 364 U. S. 137, 147, 151-154 (1960); Atlantic Refining Co. v. Public Serv. Comm’n of New York, 360 U. S. 378, 388 (1959)." }, { "docid": "21882699", "title": "", "text": "an intrastate pipeline, but the FPC held that the previous interstate sales dedicated all the gas covered by the original lease, including the gas remaining at the termination of the lease, and therefore the gas could not be diverted to the intrastate market without Commission abandonment authorization. On appeal, the Fifth Circuit held that under Texas property law the producer-lessee could not dedicate the portion that the reversioners would own upon termination of the lease. Southland Royalty Co. v. FPC, 543 F.2d 1134 (5th Cir. 1976). The Supreme Court reversed. It held that the earlier dedication covered all the natural gas reserves beneath the tract, and that diversion of the gas had to be authorized by the Commission. The majority relied on two alternative rationales to hold that the reversioners’ interest remained dedicated. 436 U.S. at 525-31, 98 S.Ct. at 1958-61. The first rationale is the successor in interest doctrine: if a lessee initiated an interstate sale pursuant to a certificate, all subsequent owners of the mineral rights, including leasehold reversioners, are bound by the dedication obligation of the original lessee as successors in interest to the working interest of the dedicating lessee. Alternatively, because the gas continued to flow in interstate commerce at the termination of the lease, that flow constituted a service that the reversioner can withdraw only with Commission approval. The Southland decision was handed down while this case was still under submission in the district court. Consequently, the outcome of this case changed as the complexion of the law changed. After digesting the Southland decision, and on the basis of that case, the district court concluded that the deep gas was subject to the original dedication obligation. The court then de termined which of the defendants had actually abandoned the interstate service without Commission authorization. It is only this latter portion of the determination that the NGA was violated that is challenged in this appeal. The district court held that the Moffett Group and Mid-Continent were not required to seek FPC approval prior to release of the leaseholds and thus were not in violation of the" }, { "docid": "22427188", "title": "", "text": "Federal Power Commission (now the Federal Energy Regulatory Commission) has taken some action to correct this imbalance, see National Rates for Natural Gas, 56 F. P. C. 2698, 15 P. U. R. 4th 21 (1976), aff’d sub nom. American Public Gas Assn. v. FPC, 186 U. S. App. D. C. 23, 567 F. 2d 1016 (1977), a “substantial disparity” still exists. Brief for Petitioner in No. 76-1587, pp. 6-7, n. 9. “No natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present or future public convenience or necessity permit such abandonment.” 15 U. S. C. § 717f (b) (1976 ed.). See ante, at 521 n. 1. Southland acquired one-half of the mineral fee interest in the Waddell lease in 1926; the remaining fractional interests are owned by over 100 other companies and persons. The ownership of the reversionary mineral estate of the Goldsmith lease is also dispersed; Texaco, Inc., is apparently the largest single owner, having acquired a one-fourth interest in 1929. Respondents’ royalty interest was % of 4‡ per Mcf (thousand cubic feet) for all casinghead gas produced and sold from the lease; they had no right to take gas in kind or to receive a royalty based on the price received by the lessee for the gas. App. 135-140. Casinghead gas is found in association with crude oil; it is to be distinguished from “gas-well gas.” Gulf sold its gas from the Goldsmith lease to Phillips Petroleum Co., which processed the gas and sold it to El Paso, which in turn transported the gas in interstate commerce for subsequent resale. For the purposes of this case, the parties have agreed that there are no material differences between the Goldsmith and Waddell leases. See ante, at 521 n." }, { "docid": "22427168", "title": "", "text": "year?” Southland Royalty Co. v. FPC, 543 F. 2d 1134, 1136 (1976). In my opinion, the Fifth Circuit correctly answered that question in the negative and ruled that the lessors did not have to seek the Commission’s abandonment approval under § 7 (b). Through two separate leases executed in 1925, Gulf Oil Corp. obtained the right to explore, produce, and market oil and gas from specified acreage in Texas. The leases were for a fixed term of 50 years, and the reversionary interests in the minerals were shared by a number of fee owners (respondents), of which Southland Royalty Co. is the largest. As lessors of the property, respondents received a royalty based on the quantity of natural gas produced and the number of producing wells. Gulf’s interest in the leased gas terminated, as a matter of Texas law, in 1975, and the mineral rights reverted to respondents. See Gulf Oil Corp. v. Southland Royalty Co., 496 S. W. 2d 547 (Tex. 1973). In 1951, well before its leasehold interest expired, Gulf contracted to sell casinghead gas to the El Paso Natural Gas Co., an interstate pipeline. Thereafter, Gulf applied for, and the Federal Power Commission issued, a certificate of public convenience and necessity authorizing its sale of natural gas to El Paso, to be effective as long as Gulf continued its authorized operations in accordance with the statute and applicable regulations. See n. 13, infra. The price of the gas sold by Gulf to El Paso was then regulated by the Commission. The price of gas on the intrastate market was, however, not subject to such regulation. Shortly before the expiration of the leases, Southland and the other mineral fee owners therefore made plans to sell their casinghead gas in the intrastate market as soon as the leases expired. In order to preserve one of its sources of supply, El Paso filed a petition with the Commission seeking a determination that the leasehold gas had been dedicated to interstate commerce and could not be withdrawn from that market without Commission approval. The Commission held that Southland and the other" }, { "docid": "21882698", "title": "", "text": "public convenience and necessity, however, did not alone constitute dedication. Gas reserves under the certificate became dedicated to interstate commerce when physical delivery of gas commenced pursuant to the certificate. Tenneco Exploration, Ltd. v. FERC, 649 F.2d 376, 379-80 (5th Cir. 1981); Falcon Petroleum v. FERC, 642 F.2d 780, 784 (5th Cir. 1981); Conoco, Inc. v. FERC, 622 F.2d 796, 797 (5th Cir. 1980); Wessely Energy Corp. v. Arkansas Louisiana Gas Co., 593 F.2d 917, 920 (10th Cir. 1979) (per curiam). One of the most controversial decisions concerning the scope of the dedication obligation is California v. Southland Royalty Co., 436 U.S. 519, 98 S.Ct. 1955, 56 L.Ed.2d 505 (1978) (4-3 decision). In that case, a producer acquired a fifty-year oil and gas lease, entered into a gas purchase contract with an interstate pipeline, obtained a certificate from the FPC, and initiated deliveries of gas. When the lease expired, the producer-lessee’s interest in the remaining reserves reverted to the owners of the re-versionary mineral interest. The reversion-er contracted to sell its share of production to an intrastate pipeline, but the FPC held that the previous interstate sales dedicated all the gas covered by the original lease, including the gas remaining at the termination of the lease, and therefore the gas could not be diverted to the intrastate market without Commission abandonment authorization. On appeal, the Fifth Circuit held that under Texas property law the producer-lessee could not dedicate the portion that the reversioners would own upon termination of the lease. Southland Royalty Co. v. FPC, 543 F.2d 1134 (5th Cir. 1976). The Supreme Court reversed. It held that the earlier dedication covered all the natural gas reserves beneath the tract, and that diversion of the gas had to be authorized by the Commission. The majority relied on two alternative rationales to hold that the reversioners’ interest remained dedicated. 436 U.S. at 525-31, 98 S.Ct. at 1958-61. The first rationale is the successor in interest doctrine: if a lessee initiated an interstate sale pursuant to a certificate, all subsequent owners of the mineral rights, including leasehold reversioners, are bound by the" }, { "docid": "1705732", "title": "", "text": "LEWIS, Circuit Judge. The Jicarilla Apache Tribe (the Tribe) has petitioned this court to review two orders of the Federal Energy Regulatory Commission (FERC). The initial order and the order denying rehearing were issued on October 4 and December 3, 1976, respectively, in response to the Tribe’s application for a “small producer” certificate to authorize sales of natural gas to pipeline companies. The denomination as a small producer exempts an independent producer from many of the filing requirements under the Natural Gas Act, 15 U.S.C. §§ 717-717w, and normally allows the producer to charge a higher rate for its gas than that allowed to large gas producers. 18 C.F.R. § 157.40. The Tribe applied for the certificate because it wished to sell for resale in interstate commerce royalty gas produced from wells on its reservation in New Mexico. The wells are located on land leased to El Paso Natural Gas Co. and Northwest Pipeline Corp. The leases contain royalty provisions allowing the Tribe to take cash in payment or, on 30 days notice, to take payment in kind. It was the Tribe’s election to take its royalty in kind which was the genesis of this appeal. The Tribe intended initially (for about 18 months) to sell all of its royalty gas to El Paso and Northwest for resale in interstate commerce. Ultimately, however, the Tribe intended to use most of the gas for its own industrial needs on the reservation, selling only the amount unused to El Paso and Northwest on a day-to-day basis. The Tribe’s application for a certificate to authorize the sale of their gas was required under provisions of the Natural Gas Act. 15 U.S.C. §§ 717a(6), 717f(c). In the orders under review the FERC granted the Tribe a small producer certificate but restricted the price which could be charged for the royalty gas to the lower rate applicable to large producers. The FERC further held that the Tribe would have to obtain abandonment authorization pursuant to 15 U.S.C. § 717f(b) before it could remove the royalty gas from the interstate market and apply it to their" }, { "docid": "7566133", "title": "", "text": "to whom it reverted. . Private contractual arrangements might shift control of the facilities and thereby determine who is obligated to provide that service, but the parties may not simply agree to terminate the service obligation without the Commission’s permission. California v. Southland Royalty Co., 436 U.S. at 526-527, 98 S.Ct. at 1959-60, 56 L.Ed.2d at 512 (emphasis in original). Murphy claims that this does irreparable harm to property law in that it would permit one to dedicate gas that was owned by another. Murphy’s contention is that the gas could not have been previously dedicated, since Southwest, the farmout recipient, had no ownership interest in the gas that permitted it either to contract to sell or to dedicate it. This argument was expressly rejected by the Supreme Court in California v. Southland Royalty Co. There a lessee for a term of years sold gas in interstate commerce and accepted a certificate of unlimited duration from the FPC. In subsequent rate litigation, in countering the argument that the gas at issue “was never impressed with an obligation to serve the interstate market because it was never ‘dedicated’ to an interstate sale” since “no man can dedicate what he does not own,” the Court pointed out that “gas which is ‘dedicated’ pursuant to the Natural Gas Act is not surrendered to the public; it is simply placed within the jurisdiction of the Commission, so that it may be sold to the public at the ‘just and reasonable’ rates specified by § 4(a) of the Act.” California v. Southland Royalty Co., 436 U.S. at 527, 98 S.Ct. at 1960, 56 L.Ed.2d at 512. Thus it is clear that by “dedicating” gas to the interstate market a producer does not, by such dedication alone, dispose of gas that belongs to another, but only establishes its regulatory status. An attempt to literally apply the black letter concepts of Tiffany cannot be successful where inimical to the public interests protected by the Natural Gas Act discussed earlier. The dedication of all the gas to interstate commerce, done pursuant to the certificate issued under the i960" }, { "docid": "7566134", "title": "", "text": "an obligation to serve the interstate market because it was never ‘dedicated’ to an interstate sale” since “no man can dedicate what he does not own,” the Court pointed out that “gas which is ‘dedicated’ pursuant to the Natural Gas Act is not surrendered to the public; it is simply placed within the jurisdiction of the Commission, so that it may be sold to the public at the ‘just and reasonable’ rates specified by § 4(a) of the Act.” California v. Southland Royalty Co., 436 U.S. at 527, 98 S.Ct. at 1960, 56 L.Ed.2d at 512. Thus it is clear that by “dedicating” gas to the interstate market a producer does not, by such dedication alone, dispose of gas that belongs to another, but only establishes its regulatory status. An attempt to literally apply the black letter concepts of Tiffany cannot be successful where inimical to the public interests protected by the Natural Gas Act discussed earlier. The dedication of all the gas to interstate commerce, done pursuant to the certificate issued under the i960 contract, fixed, as well, the applicable date for determining the rate chargeable for the subject gas. “Under the Commission’s rate structure, the applicable maximum price for a producer’s sale is determined ... by the moment at which the gas was first dedicated to the interstate market . . .” Permian Basin, 390 U.S. at 795, 88 S.Ct. at 1375. In short, since the 1960 contract dedicated the gas to interstate commerce and subjected it to the Commission’s regulatory authority, it follows that for regulatory purposes the gas is being sold under the 1960 contract, as the Commission ruled. The interpretation made is consistent with the legislative purpose of the Natural Gas Act. A contrary interpretation could open the door to a flood of attempts to defeat the regulatory purpose of the Commission by use of short term contracts. [T]he way would be clear for every independent producer of natural gas to seek certification only for the limited period of its initial contract with the transmission company, and thus automatically be free at a future date," }, { "docid": "1705734", "title": "", "text": "own industrial needs. The Tribe objects to both of these requirements 6n appeal. I. Abandonment Authorization [1,2] Under 15 U.S.C. § 717f(b), no natural gas company may abandon all or any portion of any source rendered by means of facilities subject to the jurisdiction of the FERC without Commission approval. This provision has been most recently construed by the Supreme Court in California v. Southland Royalty Co., —— U.S. —— , 98 S.Ct. 1955, 56 L.Ed.2d 505, a case which is directly relevant to the issue before us. Southland Royalty restated the established rule that once natural gas is “dedicated” to interstate commerce under a certificate of public convenience and necessity, that gas may not be withdrawn from the interstate market without prior Commission approval. 98 S.Ct. at 1958, citing Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 156, 80 S.Ct. 1392, 4 L.Ed.2d 1623. The Tribe asserts this rules is inapplicable in this case because their royalty gas has never been dedicated to the interstate market. Their argument is premised on the fact that they reserved the option to take their royalty in kind in the lease. El Paso and Northwest, being at all times subject to this provision as lessees, had no legal power to dedicate this gas to interstate commerce. This argument is made despite the fact that all the gas produced from the wells is either sold, or commingled with gas being sold, interstate by El Paso and Northwest under FERC certificate. We believe the Supreme Court’s opinion in Southland Royalty, supra, requires rejection of the Tribe’s arguments. The respondents in Southland made the identical claim as is made by the Tribe in this case, that is, “ ‘no man can dedicate what he does not own.’ ” 98 S.Ct. at 1960. The Supreme Court rejected this argument on the grounds that “dedicating gas to the interstate market . . . does not effect a gift or even a sale of that gas, but only changes its regulatory status.” Id. (footnote omitted). The basic thrust of the Court’s opinion was that the service obligation imposed" }, { "docid": "1705735", "title": "", "text": "that they reserved the option to take their royalty in kind in the lease. El Paso and Northwest, being at all times subject to this provision as lessees, had no legal power to dedicate this gas to interstate commerce. This argument is made despite the fact that all the gas produced from the wells is either sold, or commingled with gas being sold, interstate by El Paso and Northwest under FERC certificate. We believe the Supreme Court’s opinion in Southland Royalty, supra, requires rejection of the Tribe’s arguments. The respondents in Southland made the identical claim as is made by the Tribe in this case, that is, “ ‘no man can dedicate what he does not own.’ ” 98 S.Ct. at 1960. The Supreme Court rejected this argument on the grounds that “dedicating gas to the interstate market . . . does not effect a gift or even a sale of that gas, but only changes its regulatory status.” Id. (footnote omitted). The basic thrust of the Court’s opinion was that the service obligation imposed by the Natural Gas Act is paramount to any private contractual arrangement. This obligation, once imposed, requires the flow of gas to the interstate market until abandonment authorization has been obtained. Id. at 1958. We hold that the FERC did not err in that portion of its ruling regarding abandonment. II. Price Ceiling Under applicable FERC regulations, a small producer is allowed to charge a higher price for its gas than the price ceiling set by the Commission for large producers. 18 C.F.R. § 157.40(c). The higher rates are in recognition of the generally higher risks, higher costs, and lower production of the small company. See generally FPC v. Texaco Inc., 417 U.S. 380, 94 S.Ct. 2315, 41 L.Ed.2d 141. In anticipation of potential abuse, however, the FERC provided that the higher rates would not be available to a small producer whose gas reserves “were acquired by the purchase of developed reserves in place from a large producer.” 18 C.F.R. § 157.40(c) (emphasis added). In the order before us the FERC held that the Tribe’s" }, { "docid": "7566132", "title": "", "text": "assigned the leases to International and possessed only an overriding royalty interest and an option to convert to a working interest at some uncertain future date. International, “having full ownership of the leasehold interest, had the right to dedicate, which it did, its entire interest to interstate commerce.” Phillips Petroleum Co. v. Federal Power Commission, 556 F.2d 466, 470 (10th Cir. 1977). “The initiation of interstate service pursuant to the certificate dedicated all fields subject to that certificate.” California v. Southland Royalty Co., 436 U.S. at 525, 98.S.Ct. at 1959, 56 L.Ed.2d at 511. Moreover, the dedication of the entire gas reserve was for an unlimited period of time not affected by the length of the contract and interstate sales can not be discontinued without express authorization by the Commission. The Commission reasonably concluded that under the statute the obligation to continue service attached to the gas, not as a matter of contract but as a matter of law, and bound all those with dominion and power of sale over the gas, including the lessor to whom it reverted. . Private contractual arrangements might shift control of the facilities and thereby determine who is obligated to provide that service, but the parties may not simply agree to terminate the service obligation without the Commission’s permission. California v. Southland Royalty Co., 436 U.S. at 526-527, 98 S.Ct. at 1959-60, 56 L.Ed.2d at 512 (emphasis in original). Murphy claims that this does irreparable harm to property law in that it would permit one to dedicate gas that was owned by another. Murphy’s contention is that the gas could not have been previously dedicated, since Southwest, the farmout recipient, had no ownership interest in the gas that permitted it either to contract to sell or to dedicate it. This argument was expressly rejected by the Supreme Court in California v. Southland Royalty Co. There a lessee for a term of years sold gas in interstate commerce and accepted a certificate of unlimited duration from the FPC. In subsequent rate litigation, in countering the argument that the gas at issue “was never impressed with" } ]

[ { "docid": "22609755", "title": "", "text": "memorandum opinion, findings of fact and conclusions of law, and judgment. See 192 F. Supp. 1. The relief granted was merely a declaration that the 1944 Amendment “is unconstitutional, both on its face and as applied to the plaintiff herein,” and “ [t]hat the plaintiff is now, and ever since the date of his birth has been, a national and citizen of the United States.” Thus, despite the amendment to Mendoza-Martinez’ complaint before the third trial, it is clear that neither the parties nor the judge at any relevant time regarded the action as one in which injunctive relief was material to the disposition of the case. Since no injunction restraining the enforcement of § 401 (j) was at issue, § 2282 was not in terms applicable to require the convening of a three-judge District Court. Whether an action solely for declaratory relief would under all circumstances be inappropriate for consideration by a three-judge court we need not now decide, for it is clear that in the present case the congressional policy underlying the statute was not frustrated by trial before a single judge. The legislative history of § 2282 and of its complement, § 2281, requiring three judges to hear in-junctive suits directed against federal and state legislation, respectively, indicates that these sections were enacted to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme, either state or federal, by issuance of a broad injunctive order. Section 2281 “was a means of protecting the increasing body of state legislation regulating economic enterprise from invalidation by a conventional suit in equity. . . . The crux of the business is procedural protection against an improvident state-wide doom by a federal court of a state’s legislative policy. This was the aim of Congress . . . .” Phillips v. United States, 312 U. S. 246, 250-251. Repeatedly emphasized during the congressional debates on § 2282 were the heavy pecuniary costs of the unforeseen and debilitating interruptions in the administration of federal law which could be wrought by a single judge’s order, and" } ]

[ { "docid": "22452255", "title": "", "text": "13-20, but those arguments should be directed to Congress rather than the courts. Rockefeller v. Catholic Medical Center, supra; Stamler v. Willis, 393 U. S. 407; Moody v. Flowers, 387 U. S. 97; Phillips v. United States, supra. Mr. Justice Douglas, dissenting. I agree with the District Court that the case is too hypothetical to qualify as a “case” or “controversy” within the meaning of Article III and I would affirm. I do not, however, share the aversion to 28 U. S. C. § 1253 which the Court's opinion reflects. I would be hospitable to its aim and purpose as my dissent in Swift & Co. v. Wickham, 382 U. S. 111, 129, indicates. The declaratory judgment is, I think, “an order granting or denying . . . an . . . injunction” within the meaning of § 1253. Kennedy v. Mendoza-Martines, 372 U. S. 144, is not to the contrary. It merely held that in some circumstances “an action solely for declaratory relief” could be tried before a single judge where the “relief sought and the order entered affected an Act of Congress in a totally noncoercive fashion.” Id., at 154, 155. We indicated, however, that a different result would follow “whenever the operation of a statutory scheme may be immediately disrupted before a final judicial determination of the validity of the trial court’s order can be obtained.” Id., at 155. The Kennedy case, in other words, involved solely the question whether a three-judge court need always be summoned where no injunctive relief was asked or contemplated. The answer involved an analysis of 28 U. S. C. § 2281 and § 2282. We are now concerned with § 1253 and the meaning of “an order granting or denying . . . an . . . injunction.” The declaratory judgment may well contain a “thou shalt not” as commanding as any injunction. Or its refusal may be as definitive an adjudication as the refusal of an injunction. Ordinarily a declaratory judgment will result in precisely the same interference with and disruption of state proceedings that the long-standing policy limiting injunctions" }, { "docid": "13923085", "title": "", "text": "three-judge court order granting or denying injunctive relief, Congress attempted to assure increased deference, greater deliberation, and more effective judicial review of those cases where the operation of federal or state-wide legislation was threatened. Phillips v. United States, 312 U.S. at 250, 61 S.Ct. 480, Swift & Co. v. Wickham, 382 U.S. 111, 127, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965). Recognizing the congressional intent underlying the three-judge court statute, the Supreme Court has attempted to construe its jurisdiction under section 1253 in a manner consistent with both the congressional policy favoring accelerated review of three-judge court orders granting or denying injunctive relief and the equally significant congressional concern for minimizing the Supreme Court’s mandatory docket. Gonzalez v. Employees Credit Union, 419 U.S. at 98-99, 95 S.Ct. 289; MTM, Inc. v. Baxley, 420 U.S. at 804, 95 S.Ct. 1278. In Phillips v. United States, 312 U.S. at 250, 61 S.Ct. at 483, the Court stated: [Ijnasmuch as this procedure [three-judge court statutes] also brings direct review of a district court to this Court, any loose construction of the requirements . . . would defeat the purposes of Congress, as expressed by the Jurisdictional Act of February 13, 1925, to keep within narrow confines our appellate docket. Thus, in defining the scope of its jurisdiction under section 1253, the Court has stressed that Congress did not intend the three-judge court statutory scheme as “a measure of broad social policy to be construed with great liberality,” but intended it, rather, “as an enactment technical in the strict sense of the term and to be applied as such.” Phillips v. United States, 312 U.S. at 251, 61 S.Ct. at 483; Mitchell v. Donovan, 398 U.S. at 431, 90 S.Ct. 1763. Based on this commitment to a narrow construction of section 1253, the Supreme Court has held that a three-judge court order granting or denying only a declaratory judgment may not be appealed to the Court under section 1253. Cases cited, p. 1276, supra. In Mitchell v. Donovan, supra, the Court was asked to review a three-judge court order dismissing a complaint challenging the" }, { "docid": "19536939", "title": "", "text": "correctness of this holding. Judge Smith again dissented, on both mootness and the merits. On mootness, Judge Smith explained that, \"[s]ix years later, we are still enveloped in litigation over plans that have never been used and will never be implemented.\" C.J.S. 349a. On the merits, Judge Smith argued that the majority erroneously inferred a \"complex, widespread conspiracy of scheming and plotting, by various legislators and staff, carefully designed to obscure the alleged race-based motive,\" when the intent was in fact partisan. H.J.S. 294a; C.J.S. 351a. In relevant part, § 1253 applies to \"an order granting ... an interlocutory ... injunction.\" Section 1292(a)(1) applies to \"[i]nterlocutory orders ... granting ... injunctions.\" Although the similarity is obvious, the dissent perceives some unspecified substantive difference. The dissent sees nothing strange about such a result because we held in Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970) (per curiam ), that we lacked jurisdiction under § 1253 to hear an appeal from a three-judge court order denying a declaratory judgment. The decision in Donovan was based on the plain language of § 1253, which says nothing about orders granting or denying declaratory judgments. By contrast, § 1253 gives us jurisdiction to hear appeals from orders granting or denying injunctions. The same goes for Rockefeller v. Catholic Medical Center of Brooklyn & Queens, Inc., 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed.2d 806 (1970) (per curiam ), also cited by the dissent. In that case, the District Court issued a declaratory judgment, not an injunction. Again, the text of § 1253 says nothing about declaratory judgments. The inquiry required by the practical effects test is no more difficult when the question is whether an injunction was effectively granted than it is when the question is whether an injunction was effectively denied. Lower courts have had \"no problem concluding that [certain orders have] the practical effect of granting an injunction.\" I.A.M. Nat. Pension Fund Benefit Plan A v. Cooper Industries, Inc., 789 F.2d 21, 24 (C.A.D.C.1986) ; see also Andrew v. American Import Center, 110 A.3d 626, 634 (D.C.2015) (\"[G]ranting" }, { "docid": "22117558", "title": "", "text": "stare decisis once it is proved to be unworkable in practice; the mischievous consequences to litigants and courts alike from the perpetuation of an unworkable rule are too great.” Swift & Co. v. Wickham, 382 U. S. 111, 116. The reading given to § 1253 by appellant Gonzalez is not “inexorably commanded by statute.” For the statute “authorizes direct review by this Court ... as a means of accelerating a final determination on the merits.” Swift & Co. v. Wickham, supra, at 119. It is true that dismissal of a complaint on grounds short of the merits does “deny” the injunction in a literal sense, but a literalistic approach is fully persuasive only if followed without deviation. In fact, this Court’s interpretation of the three-judge-court statutes has frequently deviated from the path of literalism. If the opaque terms and prolix syntax of these statutes were given their full play, three-judge courts would be convened, and mandatory appeals would lie here, in many circumstances where such extraordinary procedures would serve no discernible purpose. Congress established the three-judge-court apparatus for one reason: to save state and federal statutes from improvident doom, on constitutional grounds, at the hands of a single federal district judge. But some of the literal words of the statutory apparatus bear little or no relation to that underlying policy, and in construing these we have stressed that the three-judge-court procedure is not “a measure of broad social policy to be construed with great liberality.” Phillips v. United States, 312 U. S. 246, 251. See also Kesler v. Dept. of Public Safety, 369 U. S. 153, 156-157; Swift & Co. v. Wickham, 382 U. S., at 124; Allen v. State Board of Elections, 393 U. S. 544, 561-562. The words of § 1253 governing this Court’s appellate jurisdiction over orders denying injunctions fall within this canon of narrow construction. Whether this jurisdiction be read broadly or narrowly, there will be no impact on the underlying congressional policy of ensuring this Court’s swift review of three-judge-court orders that grant injunctions. Furthermore, only a narrow construction is consonant with the overriding policy," }, { "docid": "22420636", "title": "", "text": "against the enforcement of Article 474 as now worded, insofar as it may affect rights guaranteed under the First Amendment. However, it is the Order of this Court that the mandate shall be stayed and this Court shall retain jurisdiction of the cause pending the next session, special or general, of the Texas legislature, at which time the State of Texas may, if it so desires, enact such disturbing-the-peace statute as will meet constitutional requirements.” 289 F. Supp., at 475. The defendants took a direct appeal to this Court, relying upon 28 U. S. C. § 1253, and we noted probable jurisdiction. 393 U. S. 819. The case was originally argued last Term, but was, on June 16, 1969, set for reargument at the 1969 Term. 395 U. S. 956. Reargument was held on April 29 and 30, 1970. We now dismiss the appeal for want of jurisdiction. The jurisdictional statute upon which the parties rely, 28 U. S. C. § 1253, provides as follows: “Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.” The statute is thus explicit in authorizing a direct appeal to this Court only from an order of a three- judge district court “granting or denying ... an interlocutory or permanent injunction.” Earlier this Term we had occasion to review the history and construe the meaning of this statute in Goldstein v. Cox, 396 U. S. 471. In that case a divided Court held that the only interlocutory orders that this Court has power to review under § 1253 are those granting or denying preliminary injunctions. The present case, however, involves no such refined a question as did Goldstein. For here there was no order of any kind either granting or denying an injunction — interlocutory or permanent. Cf. Rockefeller v. Catholic Medical Center, 397 U. S. 820; Mitchell v. Donovan," }, { "docid": "22753988", "title": "", "text": "the Federal Declaratory Judgment Act plainly evinces a congressional intent that the statutory term “injunction” in § 2283 not be read to include declaratory judgments. An analogous question was before us recently in Mitchell v. Donovan, 398 U. S. 427 (1970). There we were called on to decide whether an order of a three-judge court granting or denying a declaratory judgment may be appealed to this Court under 28 U. S. C. § 1253, which provides that with certain exceptions “any party may appeal to the Supreme Court from an order granting or denying . . . an . . . injunction in any civil action . . . required . . . to be . . . determined by a district court of three judges.” (Emphasis added.) The direct-appeal provision of § 1253 obviously reflects the particular sensitivity of granting or denying an injunction in those important cases required to be heard by three-judge courts. See generally Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1 (1964). The Court clearly had those considerations in mind when it observed, “While there are similarities between injunctions and declaratory judgments, there are also important differences. . . . [T]his Court’s jurisdiction under [§ 1253] is to be literally construed. ... It would hardly be faithful to such a construction to read the statutory term ‘injunction’ as meaning ‘declaratory judgment.’ ” 398 U. S., at 430-431." }, { "docid": "22452252", "title": "", "text": "1968 election. That injunction was granted, and no appeal was taken by the state officials. As is plain from the opening words of its opinion in the present proceeding, the District Court recognized that no request for injunctive relief was before it: “We concern ourselves here with the propriety of entertaining that portion of plaintiffs’ complaint seeking declaratory relief . . . .” 300 F. Supp., at 1146. That leaves us with the question whether an order granting or denying, only a declaratory judgment may be appealed to this Court under § 1253. In a recent case, Rockefeller v. Catholic Medical Center, 397 U. S. 820, we gave a negative answer to that question, and we adhere to that decision. Section 1253 by its terms grants this Court jurisdiction only of appeals from orders granting or denying injunctions. While there are similarities between injunctions and declaratory judgments, there are also important differences. Kennedy v. Mendoza-Martinez, 372 U. S. 144, 154-155; cf. Zwickler v. Koota, 389 U. S. 241, 254. The provisions concerning three-judge courts, including the provisions for direct appeal to this Court, antedate the Declaratory Judgment Act of 1934, but Congress substantially amended the three-judge court provisions in 1937 and 1948 without providing for such direct appeals from orders granting or denying declaratory judgments. We have stressed that the three-judge-court legislation is not “a measure of broad social policy to be construed with great liberality/’ but is rather “an enactment technical in the strict sense of the term and to be applied as such.” Phillips v. United States, 312 U. S. 246, 251. Thus this Court’s jurisdiction under that legislation is to be literally construed. It would hardly be faithful to such a construction to read the statutory term “injunction” as meaning “declaratory judgment.” We conclude, therefore, that this Court lacks jurisdiction of the appeal. A simple dismissal for want of jurisdiction, however, would leave the appellants with no recourse to appellate review, because they brought their appeal here rather than to the Court of Appeals and the time for appealing to the Court of Appeals has long since" }, { "docid": "22117566", "title": "", "text": "court of appeals); compare Kennedy v. Mendoza-Martinez, 372 U. S. 144, with FHA v. The Darlington, Inc., 358 U. S. 84, 87 (whether three judges are required where only declaratory relief is requested); compare Swift & Co. v. Wickham, 382 U. S. 111, with Kesler v. Dept. of Public Safety, 369 U. S. 153 (whether a three-judge court is required when a complaint seeks to enjoin a state statute on the ground that it violates the Supremacy Clause). Read literally, § 1253 would give this Court appellate jurisdiction over even a single judge’s order granting or denying an injunction if the “action, suit, or proceeding” were in fact one “required . . . to be heard and determined” by three judges. But we have glossed the provision so as to restrict our jurisdiction to orders actually entered by three-judge courts. See Ex parte Metropolitan Water Co., 220 U. S. 539, 545. A single judge is literally forbidden to “dismiss the action, or enter a summary or final judgment” in any case required to be heard by three judges. 28 U. S. C. § 2284 (5). Read literally, this provision might be held to prohibit a single judge from dismissing a ease unless he has determined that it fails to meet the requirements of § 2281 or § 2282. See Berueffy, The Three Judge Federal Court, 15 Rocky Mt. L. Rev. 64, 73-74 (1942), and Note, 28 Minn. L. Rev. 131, 132 (1944). But we have always recognized a single judge’s power to dismiss a complaint for want of general subject-matter jurisdiction, without inquiry into the additional requisites specified in §§ 2281 and 2282. Ex parte Poresky, 290 U. S. 30, 31; Bailey v. Patterson, 369 U. S., at 33; Idlewild Bon Voyage Liquor Corp., 370 U. S., at 715; Goosby v. Osser, supra. While the literal terms of the three-judge-court statutes give us appellate jurisdiction over any three-judge-court order granting or denying an \"interlocutory or permanent injunction,” we have in fact disclaimed jurisdiction over interlocutory orders denying permanent injunctions, Goldstein v. Cox, 396 U. S. 471, and Rockefeller v. Catholic" }, { "docid": "13923086", "title": "", "text": "construction of the requirements . . . would defeat the purposes of Congress, as expressed by the Jurisdictional Act of February 13, 1925, to keep within narrow confines our appellate docket. Thus, in defining the scope of its jurisdiction under section 1253, the Court has stressed that Congress did not intend the three-judge court statutory scheme as “a measure of broad social policy to be construed with great liberality,” but intended it, rather, “as an enactment technical in the strict sense of the term and to be applied as such.” Phillips v. United States, 312 U.S. at 251, 61 S.Ct. at 483; Mitchell v. Donovan, 398 U.S. at 431, 90 S.Ct. 1763. Based on this commitment to a narrow construction of section 1253, the Supreme Court has held that a three-judge court order granting or denying only a declaratory judgment may not be appealed to the Court under section 1253. Cases cited, p. 1276, supra. In Mitchell v. Donovan, supra, the Court was asked to review a three-judge court order dismissing a complaint challenging the constitutionality of the Federal Communist Control Act. In their complaint, plaintiffs had requested that the statute be declared unconstitutional and that an injunction be entered requiring the defendants to have the names of Communist Party candidates placed on the Minnesota ballot for the 1968 election. A three-judge court was convened and, without deciding the merits of plaintiffs’ claims, granted plaintiffs’ request for injunctive relief. Defendants did not appeal this order. Following the election, the three-judge district court determined that since the prayer for injunctive relief had been rendered moot by the passing of the 1968 election, there no longer remained a case or controversy. Accordingly, the court dismissed the complaint. Plaintiffs appealed the order to the Supreme Court under 28 U.S.C. § 1253. Noting that the “order appealed from does no more than deny the appellants a declaratory judgment striking down the Communist Control Act,” and that section 1253 “by its terms grants . jurisdiction only of appeals from orders granting or denying injunctions, the Court held that it lacked jurisdiction of the appeal. 398" }, { "docid": "22117559", "title": "", "text": "three-judge-court apparatus for one reason: to save state and federal statutes from improvident doom, on constitutional grounds, at the hands of a single federal district judge. But some of the literal words of the statutory apparatus bear little or no relation to that underlying policy, and in construing these we have stressed that the three-judge-court procedure is not “a measure of broad social policy to be construed with great liberality.” Phillips v. United States, 312 U. S. 246, 251. See also Kesler v. Dept. of Public Safety, 369 U. S. 153, 156-157; Swift & Co. v. Wickham, 382 U. S., at 124; Allen v. State Board of Elections, 393 U. S. 544, 561-562. The words of § 1253 governing this Court’s appellate jurisdiction over orders denying injunctions fall within this canon of narrow construction. Whether this jurisdiction be read broadly or narrowly, there will be no impact on the underlying congressional policy of ensuring this Court’s swift review of three-judge-court orders that grant injunctions. Furthermore, only a narrow construction is consonant with the overriding policy, historically encouraged by Congress, of minimizing the mandatory docket of this Court in the interests of sound judicial administration. Mercantile argues that § 1253 should be read to limit our direct review of three-judge-court orders denying injunctions to those that rest upon resolution of the constitutional merits of the case. There would be evident virtues to this rule. It would lend symmetry to the Court’s jurisdiction since, in reviewing orders granting injunctions, the Court is necessarily dealing with a resolution of the merits. While issues short of the merits— such as justiciability, subject-matter jurisdiction, equitable jurisdiction, and abstention — are often of more than trivial consequence, that alone does not argue for our re>viewing them on direct appeal. Discretionary review in any case would remain available, informed by the mediating wisdom of a court of appeals. Furthermore, the courts of appeals might in many instances give more detailed consideration to these issues than this Court, which disposes of most mandatory appeals in summary fashion. But the facts of this case do not require us to" }, { "docid": "22452251", "title": "", "text": "Court under 28 IJ. S. C. § 1253, which provides: “Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.” The appellees moved to dismiss the appeal on the ground that the order complained of was not one “grant ing or denying ... an interlocutory or permanent injunction.” We noted probable jurisdiction, 396 U. S. 1000. The appellees have persisted in their claim that the Court lacks jurisdiction to consider this appeal, and after hearing oral argument we have concluded that they are right. The order appealed from does no more than deny the appellants a declaratory judgment striking down the Communist Control Act. The only injunction ever requested by the appellants was one ordering the names of the Communist Party candidates to be placed on the ballot for the November 1968 election. That injunction was granted, and no appeal was taken by the state officials. As is plain from the opening words of its opinion in the present proceeding, the District Court recognized that no request for injunctive relief was before it: “We concern ourselves here with the propriety of entertaining that portion of plaintiffs’ complaint seeking declaratory relief . . . .” 300 F. Supp., at 1146. That leaves us with the question whether an order granting or denying, only a declaratory judgment may be appealed to this Court under § 1253. In a recent case, Rockefeller v. Catholic Medical Center, 397 U. S. 820, we gave a negative answer to that question, and we adhere to that decision. Section 1253 by its terms grants this Court jurisdiction only of appeals from orders granting or denying injunctions. While there are similarities between injunctions and declaratory judgments, there are also important differences. Kennedy v. Mendoza-Martinez, 372 U. S. 144, 154-155; cf. Zwickler v. Koota, 389 U. S. 241, 254. The provisions concerning three-judge courts, including" }, { "docid": "22753906", "title": "", "text": "search and seizure.” 342 U. S., at 120. See also Cleary v. Bolger, 371 U. S. 392, 400. I also agree that the appeal from the declaratory judgment holding the parish ordinance unconstitutional is not properly before us. This Court has no power to consider the merits of that appeal for two quite distinct reasons, each sufficient to defeat our jurisdiction. First, the ordinance is neither a state statute nor of statewide application. The case thus presents a fortiori the situation in which the Court found no jurisdiction in Moody v. Flowers, 387 U. S. 97, 101. Second, the appeal is from the grant of declaratory relief, not from the grant or denial of an injunction, and jurisdiction under 28 U. S. C. § 1253 is therefore lacking. Gunn v. University Committee to End the War in Viet Nam, 399 U. S. 383; id., at 391 (White, J., concurring). This is not a case in which the District Court’s action on the prayer for declaratory relief was so bound up with its action on the request for an injunction that this Court might, on direct appeal, consider the propriety of declaratory relief on pendency grounds. Cf. Zwickler v. Koota, 389 U. S. 241; Samuels v. Mackell, ante, p. 66. Indeed, the District Court itself recognized that the request for a declaratory judgment regarding the local ordinance was so unrelated to the prayer for injunctive relief against the state statute that the single District Judge entered a separate order declaring the ordinance unconstitutional. Mr. Justice Douglas, dissenting in part. I The three-judge panel was properly convened under 28 U. S. C. § 2281 to consider the validity of a Louisiana statute of general application. That court was also asked, however, to pass on an ordinance of St. Bernard Parish. But I agree with part III of the opinion of the Court written by Mr. Justice Black that we have no jurisdiction over that phase of the litigation. It is by now elementary that a three-judge court may not be convened to consider the validity of a local ordinance or a statute" }, { "docid": "2269092", "title": "", "text": "again the Supreme Court has warned us that the three-judge court legislation is to be narrowly construed. Mitchell v. Donovan, 90 S.Ct. 1763 (June 15, 1970); Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 85 L.Ed. 800 (1941). The statute was patterned to prevent the possibility of a single judge bringing to a halt the appli cation of the legislative process. Its purpose is the protection of the legislative branch from, judicial interference. Goldstein v. Cox, 396 U.S. 471, 476-477, 90 S.Ct. 671, 24 L.Ed.2d 663 (1970); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962), fixes three guidelines for district judges to follow in deciding whether to ask for the convention of a three-judge court. They are: (1) whether the constitutional question raised is substantial; (2) whether the complaint at least formally alleges the basis for equitable relief; and (3) whether the case presented otherwise comes within the requirements of the three-judge statute. Assuming, without deciding, that a substantial constitutional question has been raised, we, nevertheless, hold that the second requirement has not been met. The total lack of party jurisdiction of the district court to grant the injunctive relief as to § 462(a) and the inappropriateness of an injunction under the facts alleged concerning appellee’s resolution justified the dismissal by the district judge. The statutes under scrutiny are applicable only when injunctive relief is at issue. Three-judge courts are not required to grant declaratory judgments. Mitchell v. Donovan, supra; Rockefeller v. Catholic Medical Center, 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed.2d 806 (1970); Goldstein v. Cox, supra; Kennedy v. Mendoza-Martinez, supra. Kennedy is instructive. There, the plaintiff amended his complaint late in the proceedings to add a prayer for injunctive relief to his request for a declaratory judgment. The Supreme Court held that, since the district judge decided the case solely on the issue of the declaratory" }, { "docid": "13721275", "title": "", "text": "judgment is no.t an appealable order denying an injunction, at least where the denial is based upon the existence of a triable issue of fact. Switzerland Assn. v. Horne’s Market, 385 U. S. 23 (1966). However we need not decide whether the same treatment should be given to denials of summary judgment under § 1253, for we conclude that the only interlocutory orders that we have power to review under that provision are orders granting or denying preliminary injunctions. Since in our view the District Court here decided no question of preliminary-injunctive relief, we cannot review its order. Section 1253, along with the other provisions concerning three-judge district courts, 28 U. S. C. §§ 2281-2284 (a collectivity hereinafter referred to as the Three-Judge Court Act), derives from §266 of the Judicial Code of 1911, 36 Stat. 1162, which in turn derived from § 17 of the Mann-Elkins Act of 1910, 36 Stat. 557. As originally enacted, the Three-Judge Court Act required that no interlocutory injunction restraining the operation of any state statute on constitutional grounds could be issued, except by a three-judge court, and provided that “[a]n appeal may be taken directly to the Supreme Court of the United States from the order granting or denying . . . an interlocutory injunction in such case.” 36 Stat. 557. The Act grew out of the public furor over what was felt to be the abuse by federal district courts of their injunctive powers in cases involving state economic and social legislation. While broad and radical proposals were made to deal with the problem, including proposals to deprive the federal courts of all jurisdiction to enjoin state officers, Congress compromised on a provision that would deal with what was felt to be the worst abuse— the issuance of temporary restraining orders and preliminary injunctions against state statutes, either ex parte or merely upon affidavits, and subject to limited and ineffective appellate review. See Phillips v. United States, 312 U. S. 246, 250 (1941); Hutcheson, A Case for Three Judges, 47 Harv. L. Rev. 795, 803-810 (1934); Note, The Three-Judge District Court and" }, { "docid": "22420637", "title": "", "text": "to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.” The statute is thus explicit in authorizing a direct appeal to this Court only from an order of a three- judge district court “granting or denying ... an interlocutory or permanent injunction.” Earlier this Term we had occasion to review the history and construe the meaning of this statute in Goldstein v. Cox, 396 U. S. 471. In that case a divided Court held that the only interlocutory orders that this Court has power to review under § 1253 are those granting or denying preliminary injunctions. The present case, however, involves no such refined a question as did Goldstein. For here there was no order of any kind either granting or denying an injunction — interlocutory or permanent. Cf. Rockefeller v. Catholic Medical Center, 397 U. S. 820; Mitchell v. Donovan, 398 U. S. 427. All that the District Court did was to write a rather discursive per curiam opinion, ending with the paragraph quoted above. Although the Texas Legislature at its next session took no action with respect to Article 474, the District Court entered no further order of any kind. And even though the question of this Court’s jurisdiction under § 1253 was fully exposed at the original oral argument of this case, the District Court still entered no order and no injunction during the 15-month period that elapsed before the case was argued again. What we deal with here is no mere technicality. In Goldstein v. Cox, supra, we pointed out that: “This Court has more than once stated that its jurisdiction under the Three-Judge Court Act is to be narrowly construed since ‘any loose construction of the requirements of [the Act] would defeat the purposes of Congress . . . to keep within narrow confines our appellate docket.’ Phillips v. United States [312 U. S. 246], at 250. See Stainback v. Mo" }, { "docid": "22452254", "title": "", "text": "passed. Accordingly, as in other cases where an appeal was improperly brought to this Court rather than the Court of Appeals, we vacate the judgment below and remand the case so that the District Court may enter a fresh order dismissing the complaint, thus affording the appellants an opportunity to take a timely appeal to the Court of Appeals for the Eighth Circuit. It is so ordered. Mr. Justice Black concurs in the result. Mr. Justice Blackmun took no part in the consideration or decision of this case. 48 Stat. 955, 28 U. S. C. §§ 2201-2202. The early history of the three-judge-court statute, then §266 of the Judicial Code, is summarized in Goldstein v. Cox, 396 U. S. 471, 476-477. The 1937 and 1948 amendments, both of which made substantial changes in the statute, appear at 50 Stat. 752 and 62 Stat. 968, respectively. One commentator has argued for the broader construction on grounds of policy and logical symmetry, see Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1, 13-20, but those arguments should be directed to Congress rather than the courts. Rockefeller v. Catholic Medical Center, supra; Stamler v. Willis, 393 U. S. 407; Moody v. Flowers, 387 U. S. 97; Phillips v. United States, supra. Mr. Justice Douglas, dissenting. I agree with the District Court that the case is too hypothetical to qualify as a “case” or “controversy” within the meaning of Article III and I would affirm. I do not, however, share the aversion to 28 U. S. C. § 1253 which the Court's opinion reflects. I would be hospitable to its aim and purpose as my dissent in Swift & Co. v. Wickham, 382 U. S. 111, 129, indicates. The declaratory judgment is, I think, “an order granting or denying . . . an . . . injunction” within the meaning of § 1253. Kennedy v. Mendoza-Martines, 372 U. S. 144, is not to the contrary. It merely held that in some circumstances “an action solely for declaratory relief” could be tried before a single judge where the “relief sought" }, { "docid": "22452253", "title": "", "text": "the provisions for direct appeal to this Court, antedate the Declaratory Judgment Act of 1934, but Congress substantially amended the three-judge court provisions in 1937 and 1948 without providing for such direct appeals from orders granting or denying declaratory judgments. We have stressed that the three-judge-court legislation is not “a measure of broad social policy to be construed with great liberality/’ but is rather “an enactment technical in the strict sense of the term and to be applied as such.” Phillips v. United States, 312 U. S. 246, 251. Thus this Court’s jurisdiction under that legislation is to be literally construed. It would hardly be faithful to such a construction to read the statutory term “injunction” as meaning “declaratory judgment.” We conclude, therefore, that this Court lacks jurisdiction of the appeal. A simple dismissal for want of jurisdiction, however, would leave the appellants with no recourse to appellate review, because they brought their appeal here rather than to the Court of Appeals and the time for appealing to the Court of Appeals has long since passed. Accordingly, as in other cases where an appeal was improperly brought to this Court rather than the Court of Appeals, we vacate the judgment below and remand the case so that the District Court may enter a fresh order dismissing the complaint, thus affording the appellants an opportunity to take a timely appeal to the Court of Appeals for the Eighth Circuit. It is so ordered. Mr. Justice Black concurs in the result. Mr. Justice Blackmun took no part in the consideration or decision of this case. 48 Stat. 955, 28 U. S. C. §§ 2201-2202. The early history of the three-judge-court statute, then §266 of the Judicial Code, is summarized in Goldstein v. Cox, 396 U. S. 471, 476-477. The 1937 and 1948 amendments, both of which made substantial changes in the statute, appear at 50 Stat. 752 and 62 Stat. 968, respectively. One commentator has argued for the broader construction on grounds of policy and logical symmetry, see Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1," }, { "docid": "2269093", "title": "", "text": "basis for equitable relief; and (3) whether the case presented otherwise comes within the requirements of the three-judge statute. Assuming, without deciding, that a substantial constitutional question has been raised, we, nevertheless, hold that the second requirement has not been met. The total lack of party jurisdiction of the district court to grant the injunctive relief as to § 462(a) and the inappropriateness of an injunction under the facts alleged concerning appellee’s resolution justified the dismissal by the district judge. The statutes under scrutiny are applicable only when injunctive relief is at issue. Three-judge courts are not required to grant declaratory judgments. Mitchell v. Donovan, supra; Rockefeller v. Catholic Medical Center, 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed.2d 806 (1970); Goldstein v. Cox, supra; Kennedy v. Mendoza-Martinez, supra. Kennedy is instructive. There, the plaintiff amended his complaint late in the proceedings to add a prayer for injunctive relief to his request for a declaratory judgment. The Supreme Court held that, since the district judge decided the case solely on the issue of the declaratory judgment and did not regard the prayer for injunctive relief as material to the disposition of the case, there was no need for a three-judge court. Here, although the court dealt with the injunction issue, the pleadings and affidavits are insufficient to state a claim for injunctive relief. On the record as a whole, we hold that the district judge properly refused to request the convention of a three-judge court. To hold otherwise would impart magical powers to the word “injunction” by allowing the word itself to force the convention of a three-judge court without reference to the adequacy of the supporting allegations. Since there was no threat of irreparable harm and no chilling effect on First Amendment rights, Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), injunctive relief was properly denied. Normally, having decided the appeal on other grounds, we would not speak to the constitutionality of the appellee’s resolution. Here, however, the issue has been" }, { "docid": "22613982", "title": "", "text": "pending against the federal plaintiff. There, we found error in a three-judge district court’s considering, as a single question, the propriety of granting injunctive and declaratory relief. Although we noted that injunc-tive relief might well be unavailable under principles of equity jurisprudence canvassed in Douglas v. City of Jeannette, 319 U. S. 157 (1943), we held that “a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction.” 389 U. S., at 254. Only one year ago, we reaffirmed the Zwickler v. Koota holding in Roe v. Wade, 410 U. S. 113 (1973), and Doe v. Bolton, 410 U. S. 179 (1973). In those two cases, we declined to decide whether the District Courts had properly denied to the federal plaintiffs, against whom no prosecutions were pending, injunctive relief restraining enforcement of the Texas and Georgia criminal abortion statutes; instead, we affirmed the issuance of declaratory judgments of unconstitutionality, anticipating that these would be given effect by state authorities. We said: “The Court has recognized that different considerations enter into a federal court’s decision as to declaratory relief, on the one hand, and injunctive relief, on the other. Zwickler v. Koota, 389 U. S. 241, 252-255 (1967); Dombrowski v. Pfister, 380 U. S. 479 (1965).” Roe v. Wade, supra, at 166 (emphasis added). See Doe v. Bolton, supra, at 201. The “different considerations” entering into a decision whether to grant declaratory relief have their origins in the preceding historical summary. First, as Congress recognized in 1934, a declaratory judgment will have a less intrusive effect on the administration of state criminal laws. As was observed in Perez v. Ledesma, 401 U. S., at 124-126 (separate opinion of Brennan, J.): “Of course, a favorable declaratory judgment may nevertheless be valuable to the plaintiff though it cannot make even an unconstitutional statute disappear. A state statute may be declared unconstitutional in toto — that is, incapable of having constitutional applications; or it may be declared unconstitutionally vague or overbroad — that" }, { "docid": "22753987", "title": "", "text": "apply in the context of state criminal statutes challenged as unconstitutional. At issue on one side are fundamental personal rights, not property rights. At risk on the other is not the current financing of state government, but the future enforcement of a particular criminal statute. Title 28 U. S. C. § 2283 is certainly not analogous to the prohibition of federal anticipatory relief in tax cases. That statute applies only where there is a pending state proceeding, Dombrowski v. Pfister, 380 U. S., at 484 n. 2, whereas the present discussion concerns the propriety of federal relief where no state proceeding is pending. Moreover, unlike the tax statutes, §2283 is not directed to any particular class of litigation, criminal or otherwise, but is designed to protect the process of orderly state court adjudication gen erally. When Congress has wanted to protect particular categories of state business from anticipatory federal intervention, it has known how to say so. See 28 U. S. C. §§ 1341, 1342. No such statute applies to state criminal law administration. Finally, the Federal Declaratory Judgment Act plainly evinces a congressional intent that the statutory term “injunction” in § 2283 not be read to include declaratory judgments. An analogous question was before us recently in Mitchell v. Donovan, 398 U. S. 427 (1970). There we were called on to decide whether an order of a three-judge court granting or denying a declaratory judgment may be appealed to this Court under 28 U. S. C. § 1253, which provides that with certain exceptions “any party may appeal to the Supreme Court from an order granting or denying . . . an . . . injunction in any civil action . . . required . . . to be . . . determined by a district court of three judges.” (Emphasis added.) The direct-appeal provision of § 1253 obviously reflects the particular sensitivity of granting or denying an injunction in those important cases required to be heard by three-judge courts. See generally Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1 (1964). The Court" } ]

[ { "docid": "10841433", "title": "", "text": "refund amount to the plaintiff. They also refused to grant the plaintiff a lien in the vehicle they bought with the refund. The issue is whether these actions constitute embezzlement. In this regard, the plaintiff contends that by purchasing another truck, concealing that purchase, and refusing to grant the plaintiff a lien in that new vehicle, there is sufficient evidence of fraudulent intent. The problem is that the plaintiff was not the owner of the refund. Fundamentally, embezzlement involves the appropriation of property belonging to another person or entity. Contella, 166 B.R. at 30. As a basic principle, therefore, one cannot embezzle one’s own property. Davis, 155 B.R. at 131. The plaintiff appears to concede that once the debtors bought the truck with the loan proceeds, the plaintiff possessed nothing more than a security interest in a vehicle owned by another. Where a creditor holds nothing more than a security interest in a debtor’s property, the relationship is insufficient to support a finding of embezzlement. As the court stated in In re Heath, 114 B.R. 310, 311-12 (Bankr.N.D.Ga.1990): [E]mbezzlement involves the appropriation or conversion of another’s property where the property was legally in the offending party’s possession. Here, it is undisputed that the [collateral was] owned by defendant subject to plaintiffs security interest. Defendant was in lawful possession of the [collateral] and plaintiffs security interest does not give plaintiff an absolute ownership interest nor does it defeat defendant’s ownership interest. Since the property at issue belonged to defendant and was not property of another, the debt here could not be for ... embezzlement. See also Contella, 166 B.R. at 30; Rigsby, 152 B.R. at 778-79; In re Storms, 28 B.R. 761, 765 (Bankr.E.D.N.C.1983). The plaintiff neither owned nor possessed the 1987 truck which was to serve as its collateral. As the owner of the collateral, the debtor remained the owner of its proceeds, even though both the collateral and its proceeds were subject to a security interest. Contella, 166 B.R. at 30. As such, the debtors could not embezzle from themselves, and the alleged conversion of the refund does not" } ]

[ { "docid": "10841434", "title": "", "text": "310, 311-12 (Bankr.N.D.Ga.1990): [E]mbezzlement involves the appropriation or conversion of another’s property where the property was legally in the offending party’s possession. Here, it is undisputed that the [collateral was] owned by defendant subject to plaintiffs security interest. Defendant was in lawful possession of the [collateral] and plaintiffs security interest does not give plaintiff an absolute ownership interest nor does it defeat defendant’s ownership interest. Since the property at issue belonged to defendant and was not property of another, the debt here could not be for ... embezzlement. See also Contella, 166 B.R. at 30; Rigsby, 152 B.R. at 778-79; In re Storms, 28 B.R. 761, 765 (Bankr.E.D.N.C.1983). The plaintiff neither owned nor possessed the 1987 truck which was to serve as its collateral. As the owner of the collateral, the debtor remained the owner of its proceeds, even though both the collateral and its proceeds were subject to a security interest. Contella, 166 B.R. at 30. As such, the debtors could not embezzle from themselves, and the alleged conversion of the refund does not amount to embezzlement. Id.; see also Davis, 165 B.R. at 131. Furthermore, the plaintiff failed to demonstrate any fraudulent intent. Although the debtors did refuse to grant it a lien in the second vehicle, their actions and their testimony evidence nothing more than justifiable confusion over the respective rights of the parties. Mr. Conder testified that he believed the plaintiffs lien was “gone.” His statement regarding his belief at the time is uncontroverted and does not evidence fraudulent intent. His good faith is to some extent demonstrated by the fact that he made subsequent payments, albeit for only a couple of months. Presupposing for a moment that the debtors did misappropriate or convert the refund in some fashion, there was insufficient evidence of any fraudulent intent on the debtors’ part, and the claim of embezzlement must fail for this reason as well. Id. at 130; Kressner, 156 B.R. at 74; Rigsby, 152 B.R. at 778. The plaintiff also argues that the debtors’ actions constituted willful and malicious injury to its property rights. In essence, it" }, { "docid": "3386739", "title": "", "text": "supra. Here, Barristers has not shown that Caul-field has wrongfully taken any property which Barristers owned. In fact, there is no allegation or proof with respect to Caulfield’s tenancy at 175 Court Street. Embezzlement within the meaning of Section 523(a)(4) is also determined under federal common law, which defines it as the “fraudulent appropriation of money by a person to whom such property had been entrusted or into whose hands it has lawfully come.” In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994) (quoting Moore v. United States, 160 U.S. 268, 269, 16 S.Ct. 294, 295, 40 L.Ed. 422 (1895)); In re Kressner, 155 B.R. 68, 74 (Bankr.S.D.N.Y.1993); In re Balzano, 127 B.R. 524, 532 (Bankr.E.D.N.Y.1991); In re Jardula, 122 B.R. 649 (Bankr.E.D.N.Y.1990). The objectant must show that the debtor misappropriated funds for his own purpose and that he did so with a fraudulent intent or deceit. Contella, at 30. It differs from larceny in that the original taking of the property is lawful. In re Balzano, 127 B.R. 524, 533 (Bankr.E.D.N.Y.1991). Embezzlement involves the “appro priation of property belonging to another person or entity.” In re Kibler, 172 B.R. 740, 742 (Bankr.W.D.N.Y.1994); In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994). Where the creditor is neither the owner of nor in possession of the assets, there can be no embezzlement, for “no person can embezzle from himself.” Contella, at 30 (no embezzlement where Debtor sold a tractor in which creditor had a security interest but failed to remit sale proceeds to creditor). Where title to the property is in the debtor, there can be no embezzlement. Id; Kibler, at 742. Here, there has been no showing of any wrongdoing on the Debtor’s part with respect to his tenancy of the premises at 175 Court Street. Nor has Barristers established any connection between Caulfield’s transfer of 192 Dean Street to Elliot, on the one hand, and the taking of any property from Barristers, lawfully or unlawfully, on the other. Therefore, the debt is not one “for ... embezzlement, or larceny.” Lastly, the Court declines Barristers’ invitation to find that the alleged fraudulent" }, { "docid": "10841428", "title": "", "text": "be superior to that of the competing creditor. Intriguing as these issues may be, any examination of their merits would amount to little more than an academic discussion, as they are irrelevant to a determination of the matter now before the Court. The Court must determine whether the debtors’ disposition of the loan proceeds justifies excepting the debt in question from their discharge. The fact that the plaintiff may have a tenuous claim to collateral which has been pledged to another creditor does not address the plaintiffs claim that the debtors either embezzled its money or willfully and maliciously injured its property interests. Further, this Court cannot and will not adjudicate the plaintiffs rights to the second truck when the competing claimant is not a party to the proceeding. See In re Contella, 166 B.R. 26, 31 (Bankr.W.D.N.Y.1995) (bankruptcy court cannot adjudicate creditor’s right to vehicle sold in violation of security agreement when purchaser is not party to action). Instead, the Court must examine the facts to determine whether they satisfy the requirements of the exceptions to discharge pled by the plaintiff. First, the plaintiff contends that the debtors “embezzled” the loan proceeds. 11 U.S.C. § 523(a)(4) provides that a debtor may not receive a discharge of any debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” Embezzlement is usually defined as the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come. Matter of Weber, 892 F.2d 534, 538 (7th Cir.1989); In re Gumieny, 8 B.R. 602, 605 (Bankr.E.D.Wis. 1981) see also Contella, 166 B.R. at 30; In re Blanton, 149 B.R. 393, 394 (Bankr.E.D.Va.1992); In re Allman, 147 B.R. 122, 125 (Bankr.E.D.Va.1992). Generally speaking, to demonstrate embezzlement the creditor must prove that specific property was entrusted to the debt- or, the debtor appropriated that property for a use other than that for which it was intended, and the debtor acted with fraudulent intent. Weber, 892 F.2d at 538; In re Belfry, 862 F.2d 661, 662 (8th Cir.1988); In re Kressner, 155" }, { "docid": "1815379", "title": "", "text": "the payments, it would not have entered into the transaction in the first instance. Here, Pro Source did not blindly ignore obvious misrepresentations because by virtue of Debt- or’s execution of the contract a “cursory glance” could not have revealed the actual facts and circumstances of the transaction. AT & T Universal Card Services v. Alvi (In re Alvi), 191 B.R. 724, 731 (Bankr.N.D.Ill.1996). Accordingly, the record demonstrates that Pro Source justifiably relied on the Debtor’s misrepresentations to its detriment under § 523(a)(2)(A), and Bombardier is entitled to the benefit of that reliance. Conclusion on the Dischargeability Claim Under § 523(a)(2)(A) Bombardier has shown that no genuine issue of material fact exists as to whether the Debtor incurred the Debt owed to Bombardier by means of false pretenses under 11 U.S.C. § 523(a)(2)(A). The un-controverted record shows that by signing the contract Debtor misrepresented her role and purpose in the transaction. The undisputed facts show that the Debtor had no intention of possessing or paying for the Motorcycle, yet she represented that she was purchasing the Motorcycle for herself and that she would be the party to make the payments under the terms of the Agreement. Moreover, the lender had no knowledge from the contract that the Debtor was acting merely as a front in the transaction and that she had no intention of purchasing or paying for the Motorcycle herself. Furthermore, the lender was justified in relying on Debtor’s written representations because a cursory examination of the Debtor’s representations could not reveal the true nature of her intent in the transaction. Accordingly, Bombardier’s Motion for Summary Judgment on Count I of its Complaint will be allowed by separate order, and Debtor’s Motion for Summary Judgment on Count I will be denied. Count II: Dischargeability Claim under § 523(a)(4) for Debts Arising from Debtor’s Embezzlement A debt resulting from a debt- or’s embezzlement is nondischargeable. 11 U.S.C. 523(a)(4). To establish the nondischargeability of a debt because of a debt- or’s embezzlement, the creditor must show by a preponderance of the evidence (1) that the debtor appropriated the subject funds for" }, { "docid": "10841432", "title": "", "text": "in acquiring the vehicle and pursing registration of it, the claim must fail. There is neither a misappropriation nor any fraudulent intent, as is required to demonstrate embezzlement under § 523(a)(4). Weber, 892 F.2d at 538; Belfry, 862 F.2d at 662. Although the debtors may have been dilatory, or even negligent, in obtaining the vehicle identification number or in preparing the title application concerning the truck, the Court finds their actions completely lacking in the requisite fraudulent intent. It appears they did as well as many unrepresented consumers would have done in similar circumstances. Next, the Court must consider the debtors’ actions when they received the “refund” from Weedle-LaFavere Chevrolet. In truth, this is the only period of time in which their actions could in any manner be considered questionable. Prior to the issuance of the refund, they acted consistently with their stated purpose of obtaining a loan to buy the truck. Once they received the refund and learned that the plaintiff had refused to extend them further credit, they chose not to remit the refund amount to the plaintiff. They also refused to grant the plaintiff a lien in the vehicle they bought with the refund. The issue is whether these actions constitute embezzlement. In this regard, the plaintiff contends that by purchasing another truck, concealing that purchase, and refusing to grant the plaintiff a lien in that new vehicle, there is sufficient evidence of fraudulent intent. The problem is that the plaintiff was not the owner of the refund. Fundamentally, embezzlement involves the appropriation of property belonging to another person or entity. Contella, 166 B.R. at 30. As a basic principle, therefore, one cannot embezzle one’s own property. Davis, 155 B.R. at 131. The plaintiff appears to concede that once the debtors bought the truck with the loan proceeds, the plaintiff possessed nothing more than a security interest in a vehicle owned by another. Where a creditor holds nothing more than a security interest in a debtor’s property, the relationship is insufficient to support a finding of embezzlement. As the court stated in In re Heath, 114 B.R." }, { "docid": "1318922", "title": "", "text": "fraudulent intent or deceit. Contella, 166 B.R. at 30. It differs from larceny in that the original taking of the property is lawful. In re Balzano, 127 at 533. Embezzlement involves the “appropriation of property belonging to another person or entity.” In re Kibler, 172 B.R. 740, 742 (Bankr.W.D.N.Y.1994); In re Contella, 166 B.R. at 30. But, even with respect to embezzlement, where a creditor (such as the bank here) is neither the owner of nor in possession of the assets, there can be no embezzlement, for “no person can embezzle from himself.” Contella, 166 B.R. at 30 (no embezzlement where debtor sold a tractor in which creditor had a security interest but failed to remit sale proceeds to creditor). While the first two claims fail to state a cause of action, the third claim arguably survives by reason of the Debtor having failed to respond to paragraph 21 of the complaint. FRCP 8(d) provides, in pertinent part, as follows: Averments in a pleading to which a responsive pleading is required ... are admitted when not denied in the responsive pleading. Averments in a pleading as to which no responsive pleading is required or permitted shall be taken as denied or avoided. Paragraph 21 is a pleading as to which a responsive pleading was required and, as a consequence of Debtor’s failure to respond, he is deemed to have admitted it. As noted, that paragraph alleged that, “at the time of making the warranty, the warranty was false and known by defendant to be false.” While the third claim does not set forth with any specificity the false representation that was allegedly made, the Debtor’s admission of the allegations set forth in ¶ 21 arguably supplies that which was missing. That is, having admitted that he knew the warranty was false and that he knew it was false when made, the Debtor thus implicitly acknowl edges that he is aware of what constitutes the “false representation.” Reading the allegations that form the third claim for relief in the light most favorable to the bank, it sets forth a cause of" }, { "docid": "3701792", "title": "", "text": "duties to protect creditors. In re Hussain, 308 B.R. at 867 (quoting Technic Eng’g, Ltd. v. Basic Envirotech, Inc., 53 F.Supp.2d 1007, 1010 (N.D.Ill.1999)). The Plaintiff has offered no other reason why the Debtor would have owed a fiduciary duty to the Plaintiff, and since it failed to allege or support an allegation that 10th Inning was insolvent, its argument under Section 523(a)(4) must fail. The Plaintiff also for the first time mentioned its claim of embezzlement in its response to the Debtor’s motion to dismiss. Bankruptcy courts define embezzlement as the “fraudulent appropriation of property by a person to whom such property has been entrusted or into whose hands it has lawfully come.” In re Weber, 892 F.2d 534, 538-39 (7th Cir.1989) (quoting Moore v. United States, 160 U.S. 268, 269, 16 S.Ct. 294, 295, 40 L.Ed. 422 (1895)). To prove embezzlement, the creditor must show by clear and convincing evidence that (1)the debtor appropriated funds for his or her own benefit; and (2) the debtor did so with fraudulent intent or deceit. Id. (citing In re Taylor, 58 B.R. 849, 855 (Bankr.E.D.Va.1986); In re James, 42 B.R. 265, 267 (Bankr.W.D.Ky.1984); In re Storms, 28 B.R. 761, 765 (Bankr.E.D.N.C.1983); In re Graziano, 35 B.R. 589, 595 (Bankr.E.D.N.Y.1983)). It may be that the Debtor appropriated funds of 10th Inning for his own benefit, but the Plaintiff has no standing to assert the rights of 10th Inning. Nor does the Plaintiff assert that it had a direct interest in the equipment sold or proceeds thereof. Even a security interest does not rise to a level of ownership sufficient to support a claim for embezzlement for purposes of Section 523(a)(4), In re Whiters, 337 B.R. 326, 333 (Bankr.N.D.Ind.2006) (citing First Nat’l Bank v. Phillips (In re Phillips), 882 F.2d 302, 304-305 (8th Cir.1989)); see also Bombardier Capital, Inc. v. Dobek (In re Dobek), 278 B.R. 496, 510 (Bankr.N.D.Ill.2002), and the Plaintiff was only an unsecured claimant with a claim that had not yet been reduced to judgment. If a security interest is not sufficient to support a claim of embezzlement, then the" }, { "docid": "1815380", "title": "", "text": "the Motorcycle for herself and that she would be the party to make the payments under the terms of the Agreement. Moreover, the lender had no knowledge from the contract that the Debtor was acting merely as a front in the transaction and that she had no intention of purchasing or paying for the Motorcycle herself. Furthermore, the lender was justified in relying on Debtor’s written representations because a cursory examination of the Debtor’s representations could not reveal the true nature of her intent in the transaction. Accordingly, Bombardier’s Motion for Summary Judgment on Count I of its Complaint will be allowed by separate order, and Debtor’s Motion for Summary Judgment on Count I will be denied. Count II: Dischargeability Claim under § 523(a)(4) for Debts Arising from Debtor’s Embezzlement A debt resulting from a debt- or’s embezzlement is nondischargeable. 11 U.S.C. 523(a)(4). To establish the nondischargeability of a debt because of a debt- or’s embezzlement, the creditor must show by a preponderance of the evidence (1) that the debtor appropriated the subject funds for his own benefit and (2) that he did so with fraudulent intent or deceit. Matter of Weber, 892 F.2d 534, 538 (7th Cir.1989). To prove embezzlement, Plaintiff must show that Debtor appropriated the funds for her own benefit, and that it did so with fraudulent intent. Id. Absent intent to defraud, the misappropriation of property does not constitute embezzlement. In re Rigsby, 152 B.R. 776, 778 (Bankr.M.D.Fla.1993). Embezzlement under 523(a)(4) is defined as the fraudulent appropriation of the creditor’s property by the debtor to whom it has been entrusted or into whose hands it has lawfully come. Pierce v. Pyritz, 200 B.R. 203, 205 (N.D.Ill.1996); see also, Matter of Weber, 892 F.2d 534, 538 (7th Cir.1989). Embezzlement differs from larceny only in that the original taking was lawful. In re Rose, 934 F.2d 901, 903 (7th Cir.1991). Therefore, by definition, before a creditor can make a claim of nondischargeability for embezzlement, it must show that the property allegedly embezzled by the Debtor was property of the creditor. Chrysler First Commercial Corp. v. Nobel (In re" }, { "docid": "3386738", "title": "", "text": "re Carolina Steel Corp., 179 B.R. 413 (Bankr.S.D.N.Y.1995); cf. NORA Realty Corp. v. Central Caterers, Inc., 91 A.D.2d 991, 457 N.Y.S.2d 851 (App.Div.1983). Therefore, the debt owed to Banisters cannot sustain an allegation of fraud or defalcation while acting in a fiduciary capacity. A claim for either embezzlement or larceny under Section 523(a)(4), however, does not require a fiduciary relationship with the Debtor. In re Kressner, 155 B.R. 68, 74 (Bankr.S.D.N.Y.1993); In re Balzano, 127 B.R. 524, 532 (Bankr.E.D.N.Y.1991). Larceny, for purposes of Section 523(a)(4), is defined by reference to federal common law, In re Sokol, 170 B.R. 556 (Bankr.S.D.N.Y.1994), aff'd., 181 B.R. 27 (S.D.N.Y.1995); In re Guerrerio, 143 B.R. 605 (Bankr.S.D.N.Y.1992), as “the fraudulent and wrongful taking and carrying away the property of another with intent to convert such property to the taker’s use without the consent of the owner.” In re Balzano, 127 B.R. 524, 532 (Bankr.E.D.N.Y.1991). The creditor must show that the debtor wrongfully took property from its owner, In re Kelly, 155 B.R. 75 (Bankr.S.D.N.Y.1993), with fraudulent intent. In re Sokol, supra. Here, Barristers has not shown that Caul-field has wrongfully taken any property which Barristers owned. In fact, there is no allegation or proof with respect to Caulfield’s tenancy at 175 Court Street. Embezzlement within the meaning of Section 523(a)(4) is also determined under federal common law, which defines it as the “fraudulent appropriation of money by a person to whom such property had been entrusted or into whose hands it has lawfully come.” In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994) (quoting Moore v. United States, 160 U.S. 268, 269, 16 S.Ct. 294, 295, 40 L.Ed. 422 (1895)); In re Kressner, 155 B.R. 68, 74 (Bankr.S.D.N.Y.1993); In re Balzano, 127 B.R. 524, 532 (Bankr.E.D.N.Y.1991); In re Jardula, 122 B.R. 649 (Bankr.E.D.N.Y.1990). The objectant must show that the debtor misappropriated funds for his own purpose and that he did so with a fraudulent intent or deceit. Contella, at 30. It differs from larceny in that the original taking of the property is lawful. In re Balzano, 127 B.R. 524, 533 (Bankr.E.D.N.Y.1991). Embezzlement involves the “appro" }, { "docid": "1815382", "title": "", "text": "Nobel), 179 B.R. 313, 315 (Bankr.M.D.Fla.1995). In support of it claim, Bombardier argues that since Debtor allowed its secured property to be converted to her own purposes — by giving custody of it to her boyfriend, and by allowing the property to be lost, and apparently unrecoverable— Debtor embezzled its property. This argument fails for two reasons. First, the Debtor cannot embezzle property that she lawfully owns. Contrary to Bombardier’s argument, the original creditor is not the owner of the Motorcycle; it possessed a perfected security interest in Debtor’s property. The original creditor was not and Bombardier is not the owner of the Motorcycle; they possessed only a perfected security interest in Debtor’s property. See Undisputed Facts, supra, at ¶ 8. Moreover, the undisputed facts reveal that the parties intended for the Debtor to have legal title to the Motorcycle. Accordingly, since the cornerstone of embezzlement is the appropriation of property belonging to another person or entity, one cannot “embezzle” one’s own property. This principle is true for purposes of discharge exception. See, e.g., In re Conder, 196 B.R. 104, 111 (Bankr.W.D.Wis.1995); In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994); Matter of Storms, 28 B.R. 761, 765 (Bankr.E.D.N.C.1983) (“Where the parties’ conduct indicates a debtor-creditor relation, funds that come into the hands of the debtor belong to him and his subsequent use of them is not embezzlement.”). In other words, Bombardier possesses only a lien, and is not in ownership or possession of the property. In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994). Second, although a creditor whose security interest has unquestionably been injured cannot make a claim under 523(a)(4) for embezzlement because the debtor cannot embezzle property to which she has title, the creditor should instead make its claim for nondischargeability under 523(a)(6). Chrysler First Commercial Corp. v. Nobel, 179 B.R. 313, 315 (Bankr.M.D.Fla.1995). In addition to accepting the reasoning that a security interest is not an ownership interest that can be embezzled, the court in Nobel explained an additional rationale for rejecting an embezzlement claim under 523(a)(4) where the property allegedly embezzled was property in which the debtor" }, { "docid": "1318921", "title": "", "text": "property owned by the bank or that he did so with fraudulent intent. Rather, the thrust of the allegations is that the Debtor took the vessels as trade-ins from his company’s customers and thereby came into lawful possession of them. There is no allegation that he unlawfully took the vessels from anyone. If the bank had alleged embezzlement, the complaint might have stated a cause of action. Embezzlement within the meaning of § 523(a)(4) is also determined under federal common law and is defined as the “fraudulent appropriation of money by a person to whom such property had been entrusted or into whose hands it has lawfully come.” In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994) (quoting Moore v. United States, 160 U.S. 268, 269, 16 S.Ct. 294, 295, 40 L.Ed. 422 (1895)); In re Kressner, 155 B.R. 68, 74 (Bankr.S.D.N.Y.1993); In re Balzano, 127 B.R. at 532; In re Jardula, 122 B.R. 649 (Bankr.E.D.N.Y.1990). The objectant must show that the debtor misappropriated funds for his own purpose and that he did so with a fraudulent intent or deceit. Contella, 166 B.R. at 30. It differs from larceny in that the original taking of the property is lawful. In re Balzano, 127 at 533. Embezzlement involves the “appropriation of property belonging to another person or entity.” In re Kibler, 172 B.R. 740, 742 (Bankr.W.D.N.Y.1994); In re Contella, 166 B.R. at 30. But, even with respect to embezzlement, where a creditor (such as the bank here) is neither the owner of nor in possession of the assets, there can be no embezzlement, for “no person can embezzle from himself.” Contella, 166 B.R. at 30 (no embezzlement where debtor sold a tractor in which creditor had a security interest but failed to remit sale proceeds to creditor). While the first two claims fail to state a cause of action, the third claim arguably survives by reason of the Debtor having failed to respond to paragraph 21 of the complaint. FRCP 8(d) provides, in pertinent part, as follows: Averments in a pleading to which a responsive pleading is required ... are admitted when" }, { "docid": "23660361", "title": "", "text": "debt arises to corporate creditors for any wrongdoing by Schultz acting as a corporate officer. Of course, Operating Engineers insist that their debt is a personal liability of Schultz, and not a liability of his corporation. Even assuming this is true, the debtor’s liability arises solely by virtue of a contract obligation, and not from a defalcation in a fiduciary capacity. B. Embezzlement Plaintiffs also proceed on the theory that their claims are nondischargeable in that they arise from the debtors’ embezzlement. Unlike former § 17(a)(4) of the Act, § 523(a)(4) does not require that embezzlement be committed while acting in a fiduciary capacity; the sole question under the Code is whether embezzlement occurred. Great American Insurance Co. v. Graziano (In re Graziano), 35 B.R. 589, 593-594 (Bankr.E.D.N.Y.1983). The federal definition of “embezzlement” for dischargeability purposes is the fraudulent appropriation of property of another by a person to whom such property has been entrusted or into whose hands it has lawfully come. Graziano, supra at 594; Great American Insurance Co. v. Storms (In re Storms) 28 B.R. 761, 765 (Bankr.E.D.N.C.1983). It differs from larceny only with respect to the manner in which the property comes into the possession of the party charged: In the case of larceny, the original taking must itself be unlawful or fraudulent. See Graziano, 35 B.R. at 594. Thus, three elements must be present: Property of another was entrusted to the debtor; the debtor appropriated the property to a use other than that for which it was entrusted; and the circumstances indicate fraud. The fraud required is fraud in fact, involving moral turpitude or intentional wrong, rather than implied or constructive fraud. United States Life Title Insurance Company of New York v. Dohm, 19 B.R. 134, 138 (N.D.Ill.1982). Plaintiffs have failed to prove the elements of embezzlement. As discussed above, when the contractor receives pay ment, ownership of the funds passes to him. One cannot embezzle, steal, or convert one’s own property. Storms, 28 B.R. at 765; Kalmar, 18 B.R. at 345; 26 Am. Jur.2d Embezzlement § 9. This principle applies as well to the corporation" }, { "docid": "1318920", "title": "", "text": "never paid the loans. This alleged scheme may have defrauded the eight customers, but there are no facts from which the court can infer that he defrauded Chemical, and obtained from Chemical some $78,-000 as a result of his fraud. As to the second claim for relief, it alleges larceny and, assuming the other allegations in the complaint to be true, must also fail as to Chemical. Larceny, for purposes of § 523(a)(4) is defined by reference to federal common law, In re Sokol, 170 B.R. 556 (Bankr.S.D.N.Y.1994), aff'd, 181 B.R. 27 (S.D.N.Y.1995); In re Guerrerio, 143 B.R. 605 (Bankr.S.D.N.Y.1992), as “the fraudulent and wrongful taking and carrying away the property of another with intent to convert such property to the taker’s use without the consent of the owner.” In re Balzano, 127 B.R. 524, 532 (Bankr.E.D.N.Y.1991). The creditor must show that the debtor wrongfully took property from it, In re Kelly, 155 B.R. 75 (Bankr.S.D.N.Y.1993), with fraudulent intent. In re Sokol, supra. Here, there is no allegation that the Debt- or wrongfully took any property owned by the bank or that he did so with fraudulent intent. Rather, the thrust of the allegations is that the Debtor took the vessels as trade-ins from his company’s customers and thereby came into lawful possession of them. There is no allegation that he unlawfully took the vessels from anyone. If the bank had alleged embezzlement, the complaint might have stated a cause of action. Embezzlement within the meaning of § 523(a)(4) is also determined under federal common law and is defined as the “fraudulent appropriation of money by a person to whom such property had been entrusted or into whose hands it has lawfully come.” In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994) (quoting Moore v. United States, 160 U.S. 268, 269, 16 S.Ct. 294, 295, 40 L.Ed. 422 (1895)); In re Kressner, 155 B.R. 68, 74 (Bankr.S.D.N.Y.1993); In re Balzano, 127 B.R. at 532; In re Jardula, 122 B.R. 649 (Bankr.E.D.N.Y.1990). The objectant must show that the debtor misappropriated funds for his own purpose and that he did so with a" }, { "docid": "10841427", "title": "", "text": "filed bankruptcy, and now seek to discharge their debt to the plaintiff, which presently totals $8,276.56. The plaintiff contends that their use of the loan proceeds constitutes embezzlement under 11 U.S.C. § 523(a)(4) or a willful and malicious injury to the plaintiffs property interests under 11 U.S.C. § 523(a)(6), thus precluding the discharge of the debt. In response to the plaintiffs allegations, the debtors have offered a multi-layered defense based upon their interpretation of the law of secured transactions. First, they contend that the involuntary confiscation of the stolen truck “severed” the plaintiffs security interest, and that the money they received was a “settlement,” not the proceeds of any disposition of the plaintiffs collateral. Second, they claim that the plaintiff “waived” its security interest by failing to call the original note immediately due and payable upon discovering that the vehicle was stolen. Third, they argue that the plaintiffs lien continues in the item acquired with the refund — namely, the second truck. Accordingly, the debtors suggest that the plaintiffs interest in the second truck may be superior to that of the competing creditor. Intriguing as these issues may be, any examination of their merits would amount to little more than an academic discussion, as they are irrelevant to a determination of the matter now before the Court. The Court must determine whether the debtors’ disposition of the loan proceeds justifies excepting the debt in question from their discharge. The fact that the plaintiff may have a tenuous claim to collateral which has been pledged to another creditor does not address the plaintiffs claim that the debtors either embezzled its money or willfully and maliciously injured its property interests. Further, this Court cannot and will not adjudicate the plaintiffs rights to the second truck when the competing claimant is not a party to the proceeding. See In re Contella, 166 B.R. 26, 31 (Bankr.W.D.N.Y.1995) (bankruptcy court cannot adjudicate creditor’s right to vehicle sold in violation of security agreement when purchaser is not party to action). Instead, the Court must examine the facts to determine whether they satisfy the requirements of the" }, { "docid": "1815384", "title": "", "text": "had title but subject to a creditor’s security interest: It is true that this [type of] interest may be injured an if it was done with the requisite willfulness and malice may be the basis of a claim of non-dischargeability under § 523(a)(6). However, it could not be the basis of a claim based on embezzlement pursuant to § 523(a)(4) because the funds allegedly embezzled were not the funds of the [secured creditor]. It is hardly logical to assume that Congress intended that the two exceptions to discharge, one based on embezzlement, § 523(a)(4); the other on willful, malicious injury to property of an entity, 523(a)(6), were intended to be used interchangeably and both have the same operating elements and proof of the other. Nobel, 179 B.R. at 315-316; see also, In re Lloyd Phillips, 882 F.2d 302 (8th Cir.1989). Because Debtor has title to the Motorcycle a claim for embezzlement of the Motorcycle cannot he. Accordingly, Bombardier has failed to show that the Debtor’s conduct comes within Section 523(a)(4). Therefore, Bombardier’s motion on Count II of its Complaint is entirely denied, and Debtor’s motion is allowed. Count III: Dischargeability Claim under § 523(a)(6) for Debtor’s Willful and Malicious Conduct Section 523(a)(6) of the Bankruptcy Code provides: (а) A discharge under section 727 does not discharge an individual debtor from any debt— (б) for willful and malicious injury by the debtor to another entity or the property of another entity. 11 U.S.C. § 523(a)(6). A creditor seeking a determination of non-dischargeability under § 523(a)(6) must show three elements by a preponderance of the evidence: (1) that the Debtor intended to and caused an injury; (2) that the Debtor’s actions were willful; and (3) that the Debtor’s actions were malicious. Under § 523(a)(6) “willful” means a palpable intent to cause injury, not merely the commission of an intentional act that happens to result in an injury. Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Section 523(a)(6) does not encompass “situations in which an act is intentional, but injury is unintended, i.e., neither desired nor in" }, { "docid": "1815381", "title": "", "text": "his own benefit and (2) that he did so with fraudulent intent or deceit. Matter of Weber, 892 F.2d 534, 538 (7th Cir.1989). To prove embezzlement, Plaintiff must show that Debtor appropriated the funds for her own benefit, and that it did so with fraudulent intent. Id. Absent intent to defraud, the misappropriation of property does not constitute embezzlement. In re Rigsby, 152 B.R. 776, 778 (Bankr.M.D.Fla.1993). Embezzlement under 523(a)(4) is defined as the fraudulent appropriation of the creditor’s property by the debtor to whom it has been entrusted or into whose hands it has lawfully come. Pierce v. Pyritz, 200 B.R. 203, 205 (N.D.Ill.1996); see also, Matter of Weber, 892 F.2d 534, 538 (7th Cir.1989). Embezzlement differs from larceny only in that the original taking was lawful. In re Rose, 934 F.2d 901, 903 (7th Cir.1991). Therefore, by definition, before a creditor can make a claim of nondischargeability for embezzlement, it must show that the property allegedly embezzled by the Debtor was property of the creditor. Chrysler First Commercial Corp. v. Nobel (In re Nobel), 179 B.R. 313, 315 (Bankr.M.D.Fla.1995). In support of it claim, Bombardier argues that since Debtor allowed its secured property to be converted to her own purposes — by giving custody of it to her boyfriend, and by allowing the property to be lost, and apparently unrecoverable— Debtor embezzled its property. This argument fails for two reasons. First, the Debtor cannot embezzle property that she lawfully owns. Contrary to Bombardier’s argument, the original creditor is not the owner of the Motorcycle; it possessed a perfected security interest in Debtor’s property. The original creditor was not and Bombardier is not the owner of the Motorcycle; they possessed only a perfected security interest in Debtor’s property. See Undisputed Facts, supra, at ¶ 8. Moreover, the undisputed facts reveal that the parties intended for the Debtor to have legal title to the Motorcycle. Accordingly, since the cornerstone of embezzlement is the appropriation of property belonging to another person or entity, one cannot “embezzle” one’s own property. This principle is true for purposes of discharge exception. See, e.g., In" }, { "docid": "10714027", "title": "", "text": "acting in a fiduciary capacity as contemplated by § 523(a)(4). Larceny is a “felonious taking of another’s personal property with the intent to convert it or deprive the owner of the same.” In re Langworthy, 121 B.R. 903, 907 (Bankr.M.D.Fla.1990) citing Black’s Law Dictionary, 5th Ed. Larceny requires property to be taken without consent and against the will of the owner with felonious intent. Debtor came into the $100,000.00 and the $44,462.27 lawfully and therefore, larceny is inapplicable. Embezzlement is the appropriation or conversion of another’s property while the property is legally in offending party’s possession. Am. Gen. Fin., Inc. v. Heath (In re Heath), 114 B.R. 310, 311 (Bankr.N.D.Ga.1990). In the current case, the funds were owned by HRP and subject to the security interest of Plaintiffs. Plaintiffs did not own the funds and therefore a claim of embezzlement cannot be sustained under the facts and circumstances of this case. See First Nat’l Bank of Fayetteville, Arkansas v. Phillips (In re Phillips), 882 F.2d 302, 304-305 (8th Cir.1989)(where debtors owned the funds subject to the creditor’s security interest, embezzlement cannot be established), In re Heath, 114 B.R. at 312 (where property was owned by debtor subject to creditor’s security interest, the debt could not be for larceny or embezzlement); WLH, LLC v. Spivey (In re Spivey), 440 B.R. 539, 546 (Bankr.W.D.Ark.2010) (petty cash belonged to corporation and not to investors and therefore investors could not bring embezzlement claim under § 523(a)(4)). 11 U.S.C. § 523(a)(6) Pursuant to 11 U.S.C. § 523(a)(6), a debt “for willful and malicious injury by the debtor to another entity or to the property of another entity” is excepted from discharge. 11 U.S.C. § 523(a)(6). A debt for “a deliberate or intentional injury not merely a deliberate or intentional act that leads to injury” is nondischargeable. Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). An injury is willful when the injury or consequence itself was intended or substantially certain to result. Id. at 61, 118 S.Ct. 974; Hope v. Walker (In re Walker), 48 F.3d 1161, 1165 (11th Cir.1995)." }, { "docid": "3386740", "title": "", "text": "priation of property belonging to another person or entity.” In re Kibler, 172 B.R. 740, 742 (Bankr.W.D.N.Y.1994); In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994). Where the creditor is neither the owner of nor in possession of the assets, there can be no embezzlement, for “no person can embezzle from himself.” Contella, at 30 (no embezzlement where Debtor sold a tractor in which creditor had a security interest but failed to remit sale proceeds to creditor). Where title to the property is in the debtor, there can be no embezzlement. Id; Kibler, at 742. Here, there has been no showing of any wrongdoing on the Debtor’s part with respect to his tenancy of the premises at 175 Court Street. Nor has Barristers established any connection between Caulfield’s transfer of 192 Dean Street to Elliot, on the one hand, and the taking of any property from Barristers, lawfully or unlawfully, on the other. Therefore, the debt is not one “for ... embezzlement, or larceny.” Lastly, the Court declines Barristers’ invitation to find that the alleged fraudulent conveyance of 192 Dean Street supports a claim under Section 523(a)(4) independently of the elements normally required. The Court is unaware of any theory, and Barristers has pointed to none, by which the alleged fraudulent conveyance of 192 Dean Street more than 8 years prior to the filing and 6 years prior to Barristers’ judgment could render the unrelated judgment nondischargeable. Nor can Barristers attempt to avoid the fraudulent conveyance in this Court, as it already has such an action pending in another forum, and in any event, the Trustee and not Barristers is the proper party to assert it here. In re AP Industries, Inc., 117 B.R. 789 (Bankr.S.D.N.Y.1990); In re Daniele Laundries, Inc., 40 B.R. 404 (Bankr.S.D.N.Y.1984). In addition, although Barristers has not clearly articulated such a theory, to the extent that it is seeking a declaration that any debt which may be found to be owed to it as a result of a judgment to be rendered in its fraudulent conveyance action is nondis-chargeable, Barristers would still have to establish that that" }, { "docid": "1815383", "title": "", "text": "re Conder, 196 B.R. 104, 111 (Bankr.W.D.Wis.1995); In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994); Matter of Storms, 28 B.R. 761, 765 (Bankr.E.D.N.C.1983) (“Where the parties’ conduct indicates a debtor-creditor relation, funds that come into the hands of the debtor belong to him and his subsequent use of them is not embezzlement.”). In other words, Bombardier possesses only a lien, and is not in ownership or possession of the property. In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994). Second, although a creditor whose security interest has unquestionably been injured cannot make a claim under 523(a)(4) for embezzlement because the debtor cannot embezzle property to which she has title, the creditor should instead make its claim for nondischargeability under 523(a)(6). Chrysler First Commercial Corp. v. Nobel, 179 B.R. 313, 315 (Bankr.M.D.Fla.1995). In addition to accepting the reasoning that a security interest is not an ownership interest that can be embezzled, the court in Nobel explained an additional rationale for rejecting an embezzlement claim under 523(a)(4) where the property allegedly embezzled was property in which the debtor had title but subject to a creditor’s security interest: It is true that this [type of] interest may be injured an if it was done with the requisite willfulness and malice may be the basis of a claim of non-dischargeability under § 523(a)(6). However, it could not be the basis of a claim based on embezzlement pursuant to § 523(a)(4) because the funds allegedly embezzled were not the funds of the [secured creditor]. It is hardly logical to assume that Congress intended that the two exceptions to discharge, one based on embezzlement, § 523(a)(4); the other on willful, malicious injury to property of an entity, 523(a)(6), were intended to be used interchangeably and both have the same operating elements and proof of the other. Nobel, 179 B.R. at 315-316; see also, In re Lloyd Phillips, 882 F.2d 302 (8th Cir.1989). Because Debtor has title to the Motorcycle a claim for embezzlement of the Motorcycle cannot he. Accordingly, Bombardier has failed to show that the Debtor’s conduct comes within Section 523(a)(4). Therefore, Bombardier’s motion on Count" }, { "docid": "3701793", "title": "", "text": "(citing In re Taylor, 58 B.R. 849, 855 (Bankr.E.D.Va.1986); In re James, 42 B.R. 265, 267 (Bankr.W.D.Ky.1984); In re Storms, 28 B.R. 761, 765 (Bankr.E.D.N.C.1983); In re Graziano, 35 B.R. 589, 595 (Bankr.E.D.N.Y.1983)). It may be that the Debtor appropriated funds of 10th Inning for his own benefit, but the Plaintiff has no standing to assert the rights of 10th Inning. Nor does the Plaintiff assert that it had a direct interest in the equipment sold or proceeds thereof. Even a security interest does not rise to a level of ownership sufficient to support a claim for embezzlement for purposes of Section 523(a)(4), In re Whiters, 337 B.R. 326, 333 (Bankr.N.D.Ind.2006) (citing First Nat’l Bank v. Phillips (In re Phillips), 882 F.2d 302, 304-305 (8th Cir.1989)); see also Bombardier Capital, Inc. v. Dobek (In re Dobek), 278 B.R. 496, 510 (Bankr.N.D.Ill.2002), and the Plaintiff was only an unsecured claimant with a claim that had not yet been reduced to judgment. If a security interest is not sufficient to support a claim of embezzlement, then the Plaintiffs rights as an unsecured creditor are certainly not sufficient. Section 523(a)(6) Claim Section 523(a)(6) provides that: “(a) A discharge under section 727 ... does not discharge an individual debtor from any debt-.... (6) for willful and malicious injury by the debtor to another entity or to the property of another entity[.]” 11 U.S.C. § 523(a)(6). To determine the nondischargeability of a debt under section 523(a)(6), a creditor must prove three elements by a preponderance of the evidence: (1) the debtor intended to and caused an injury to the creditor’s property interest; (2) the debtor’s actions were willful; and (3) the debtor’s actions were malicious. In re Burke, 398 B.R. 608, 625 (Bankr.N.D.Ill.2008)(citing Baker Dev. Corp. v. Mulder (In re Mulder), 307 B.R. 637, 641 (Bankr.N.D.Ill.2004); Glucona Am., Inc. v. Ardisson (In re Ardisson), 272 B.R. 346, 356 (Bankr.N.D.Ill.2001)). The requirements of “willfulness” and “maliciousness” are distinct requirements in the statutory text and are usually treated as such by the courts. In re Brown, 2009 WL 2461241, at *7 (citing 4 COLLIER, 523.12[2]; Carrillo v." } ]

[ { "docid": "21948389", "title": "", "text": "on the fact that the search for witnesses on the subject of commercial success has been carried on under the direction of their counsel and, thus, it is claimed that the entire subject comes under the protection of the work product rule. Rule 33 allows interrogatories to be directed to any matter that may be inquired into under rule 26. The latter rule provides that it is permissible to inquire into the identity and location of persons having knowledge of relevant facts. However, this interrogatory does not ask for the names and locations of persons having knowledge of relevant facts; it asks for the efforts that have been made to locate witnesses on this subject. This goes to the attorney’s preparation of his case for trial and therefore comes under the rule of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), which gives an attorney’s work product a qualified immunity from discovery. The Hickman Case states at page 511, 67 S.Ct. at page 393: “Proper preparation of a client’s case demands that he [the attorney] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.” In citing the principles as laid down in Hickman, the court in Uinta Oil Refining Company v. Continental Oil Company, 226 F.Supp. 495, 506 (D.Utah 1964) stated, “the detailed pattern of investigation and exploration in and of itself is not a proper subject for discovery.” What the defendants seek here goes to the exploratory efforts of the plaintiffs’ counsel in preparation for trial. In attempting to locate witnesses on a certain topic an attorney will often talk to numerous prospects; the work product rule was designed to prevent unlimited interference with such preparations. The plaintiffs will not be compelled to answer defendants’ interrogatory 211A. DEFENDANT’S MOTION TO COMPEL ANSWERS FROM MR. EWALD The defendants have moved pursuant to rule 37 to require Mr. Ewald, an employee of the plaintiffs, to answer certain questions asked him at a deposition held on July 20, 1967." } ]

[ { "docid": "22322861", "title": "", "text": "Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D.Del.1982): In selecting and ordering a few documents out of thousands counsel could not help but reveal important aspects of his understanding of the case. Indeed, in a case such as this, involving extensive document discovery, the process of selection and distillation is often more critical than pure legal research. There can be no doubt that at least in the first instance the binders were entitled to protection as work product. See also Berkey Photo, Inc. v. Eastman Kodak Co., 74 F.R.D. 613, 616 (S.D.N.Y. 1977) (notebooks representing “counsel’s ordering of ‘facts,’ referring to the prospective proofs, organizing, aligning, and marshalling empirical data with the view to combative employment that is the hallmark of the adversary enterprise” categorized as work product). Further, in selecting the documents that he thought relevant to Sporck’s deposition, defense counsel engaged in proper and necessary preparation of his client’s casé. As the Supreme Court noted in Hickman: Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurispru dence to promote justice and to protect their client’s interest. 329 U.S. at 510-11, 67 S.Ct. at 393-94. In the instant case, without the protection that the work product doctrine accords his preparation, defense counsel may have foregone a sifting of the documents, or at the very least chosen not to show the documents to petitioner. As a result, petitioner may not have been as well-prepared for his deposition, and neither plaintiff nor defendant would have realized the full benefit of a well-prepared deponent’s testimony. For these reasons, Rule 26(b)(3) placed an obligation on the trial court to protect against unjustified disclosure of defense counsel’s selection process. This conclusion, however, does not end the issue. Respondent argues, and the trial court agreed, that operation of Federal Rule of Evidence 612 removed any protection that" }, { "docid": "13215907", "title": "", "text": "representative of a party concerning the litigation, (emphasis added). While trial preparation materials may be discoverable upon an appropriate showing, the materials containing mental impressions, conclusions, opinions, and legal theories of an attorney are discoverable only in rare and extraordinary circumstances. Connolly Data Systems v. Victor Technologies 114 F.R.D. 89 (S.D.Cal.1987). See In re Doe 662 F.2d 1078 (4th Cir.1981) (holding discovery of opinion-work product only in extraordinary circumstances); In re Murphy 560 F.2d 326, 336 (8th Cir.1977) (“Opinion-work product enjoys a nearly absolute immunity and can be discovered only in rare and extraordinary circumstances”); Handgards, Inc. v. Johnson & Johnson 413 F.Supp. 926 (N.D.Cal. 1976). The Supreme Court in Hickman v. Taylor 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), noted the importance of protecting the thought processes of attorneys: Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties ... it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of client’s case demands that he assemble information, sift what he considers to be relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their client’s interests. Plaintiff asserts that the documents sought by defendants reveal the facts and evidence his attorneys felt were important to prove his claims. Moreover, he contends that the organization and characterization of the facts and evidence presented reveal the attorneys’ assessment of the strength of such facts and evidence. Without more, it would be difficult for the court to see how the documents could be characterized as anything other than “opinion-work product,” specifically protected from disclosure to opposing counsel, because the disclosure would potentially reveal plaintiff’s counsel’s mental impressions, opinions and theories about the case. See Connolly, 114 F.R.D." }, { "docid": "11897599", "title": "", "text": "discovery.” In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir.2003) (internal quotation marks and citation omitted). Under the Federal Rules of Civil Procedure, the scope of discovery extends to “any nonprivileged matter that is relevant to any party’s claim or defense.” Fed.R.Civ.P. 26(b)(1). The relevancy requirement “has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). II. Work Product Privilege A. Qualification as Work Product The Supreme Court, in Hickman v. Taylor, held that notes taken by the defendant’s attorney during interviews with witnesses to the event that eventually gave rise to the lawsuit were not discoverable by the plaintiff because it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways—aptly ... termed ... the “Work product of the lawyer.” 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947) (internal citation omitted). Federal Rule of Civil Procedure 26(b)(3) codifies the principles articulated in Hickman. See United States v. Adlman, 134 F.3d 1194, 1197 (2d Cir.1998). The Rule states that documents “prepared in anticipation of litigation or for trial” are discoverable only if “the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R.Civ.P. 26(b)(3)(A)(ii). Even where this showing has" }, { "docid": "3580470", "title": "", "text": "timeless and oft cited statements of Mr. Justice Murphy in Hickman v. Taylor elucidate the fundamentals of the work product doctrine: Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the “work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. Hickman, 329 U.S. at 511, 67 S.Ct. at 393-94. This doctrine has been codified as to tangible items in Rule 26(b)(3), Fed.R.Civ.P. which states in pertinent part: a party may obtain discovery of documents and tangible things otherwise discoverable under 'subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party" }, { "docid": "23531997", "title": "", "text": "interests of his clients. ' In performing his various duties, however, it is es sential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the ‘work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.” Similar considerations are expressed in the Hickman Circuit Court opinion. Judge Goodrich suggests that “[t]hose members of the public who have matters to be settled through lawyers and through litigation should be free to make full disclosure to their advisers and to have those advisers and other person's concerned in the litigation free to put their whole-souled efforts into the business while it is carried on. The soundness of this policy is not capable of laboratory demonstration. Enunciated and applied as it necessarily is by members of the guild which derives incidental benefit from its application, it is open to the gibes of the cynical. We believe it is sound policy; we know that it is irrefutably established in the law.” 153 F.2d at 223 (footnotes omitted). Consistent" }, { "docid": "17674242", "title": "", "text": "party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. The leading case on the “work product” doctrine is Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), a decision which pre-dated the incorporation of the work product immunity into Rule 26(b) of the Federal Rules of Civil Procedure. In Hickman, an attorney for the owners and insurers of a tug boat which had sunk interviewed and obtained statements from witnesses to the accident “with an eye toward the anticipated litigation.” Id. at 498, 67 S.Ct. at 387. The Court held that the materials were the “work product” of the attorney and were not discoverable absent a showing of substantial need. The Supreme Court made clear that the policy underlying the work product immunity is protection of the integrity of the. adversary process: Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to. be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible ways—aptly though roughly termed by the Circuit Court of Appeals in this case as the “work product of the lawyer.” Were such materials open to opposing counsel on mere demand," }, { "docid": "10006907", "title": "", "text": "the parties’ agreement. The United States requested the production of all documents exchanged between the Plaintiffs experts and the Plaintiffs attorneys. Energy Capital objected because these documents include material protected by the work-product doctrine. This case presents another occurrence of the intersection between the work-product doctrine and the discovery of expert-related information. B. Work-product doctrine Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests.... Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness, and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947). “The work product of the lawyer covers the ‘written materials obtained or prepared by an adversary’s counsel with an eye toward litigation.” It includes “interviews, statements, memoranda, correspondence, briefs, mental impressions, [and] personal beliefs.’ ” Bogosian v. Gulf Oil Corp., 738 F.2d 587, 592 (3rd Cir.1984) (quoting Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 394, 91 L.Ed. 451 (1947)). “Opinion work product includes the mental impressions, conclusions, opinion, or legal theories of an attorney or other representative" }, { "docid": "22059814", "title": "", "text": "to a judicial decision maker. And trial counsel is engaged in an adversarial process. We previously recognized this distinction with respect to our prior willfulness standard in Crystal Semiconductor Corp. v. TriTech Microelectronics International, Inc., 246 F.3d 1336, 1352 (Fed.Cir.2001), which concluded that “defenses prepared [by litigation counsel] for a trial are not equivalent to the competent legal opinion of non-infringement or invalidity which qualify as ‘due care’ before undertaking any potentially infringing activity.” Because of the fundamental difference between these types of legal advice, this situation does not present the classic “sword and shield” concerns typically mandating broad subject matter waiver. Therefore, fairness counsels against disclosing trial counsel’s communications on an entire subject matter in response to an accused in-fringer’s reliance on opinion counsel’s opinion to refute a willfulness allegation. Moreover, the interests weighing against extending waiver to trial counsel are compelling. The Supreme Court recognized the need to protect trial counsel’s thoughts in Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947): [I]t is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. The Court saw that allowing discovery of an attorney’s thoughts would result in “[ijnefficiency, unfairness and sharp practices,” that “[t]he effect on the legal profession would be demoralizing” and thus “the interests of the clients and the cause of justice would be poorly served.” Id. at 511, 67 S.Ct. 385. Although Hickman concerned work product protection, the attorney-client privilege maintained with trial counsel raises the same concerns in patent litigation. In most cases, the demands of our adversarial system of justice will far outweigh any benefits of extending waiver to trial counsel. See" }, { "docid": "14923708", "title": "", "text": "a client’s case demands- that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways— aptly- though roughly termed by the Circuit Court of Appeals in this case ás the ‘Work product of the lawyer.’ “We do not mean to say that all written materials obtained or prepared ■ by an adversary’s counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had. * * But the general policy against invading the privacy of an attorney’s course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order.” At the outset it will be noted that the Hickman case purports to apply only to the “work product” of the lawyer. In Vol. 4, •Moore’s Federal Practice, Second Edition, it is said at page 1136: “The fact that statements of witnesses are obtained, or other information acquired by a claim agent does not bring the rule of the Hickman case into play even if the claim agent is a lawyer. In Thomas v. Pennsylvania R. Co. (D.C.N.Y., 7 F.R.D. 610) defendant resisted discovery of statements of witnesses taken by a claim agent on the ground that they were taken on behalf of the attorney for the defendant. Judge Inch said: T do not agree with this effort to give this claim agent the immunity properly" }, { "docid": "3580469", "title": "", "text": "Consequently, this court finds that Dana has waived its attorney-client privilege with respect to the content of Mr. Bowe’s investigation of the plaintiffs’ allegations. This waiver extends to documents which may have been produced by Mr. Bowe or any agent of Defendant Dana that concern the investigation. However, before this court can order disclosure, it must address the defendants’ other arguments, any one of which can provide for protection from disclosure. 2. WORK PRODUCT DOCTRINE The work product doctrine provides an independent basis upon which litigants may rely for protection of an attorney’s trial preparation thoughts and materials. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The purposes and protection of the work product doctrine differ from those underlying the attorney-client privilege. The attorney-client privilege exists to keep inviolate confidences of clients to their attorneys, thereby presumably enhancing the communication exchange. The work product doctrine, however, seeks to enhance the quality of professionalism within the legal field by preventing attorneys from benefitting from the fruit of an adversary’s labor. The timeless and oft cited statements of Mr. Justice Murphy in Hickman v. Taylor elucidate the fundamentals of the work product doctrine: Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court" }, { "docid": "14923707", "title": "", "text": "lawyer should be the case of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, wherein the Court beginning at page 510 of 329 U.S. at page 393 of 67 S.Ct. said: \"Here is simply an attempt, without purported necessity or justification, to secure written statements, -private memoranda and personal recollections prepared or formed by an adverse party’s counsel in the course of his legal duties. As such, it falls outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims. Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney. “Historically, a lawyer is an officer ' of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands- that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways— aptly- though roughly termed by the Circuit Court of Appeals in this case ás the ‘Work product of the lawyer.’ “We do not mean to say that all written materials obtained or prepared ■ by an adversary’s counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had. * * But the general policy against invading the" }, { "docid": "1848717", "title": "", "text": "of demonstrating the protection is justified. Hickman, 329 U.S. at 509, 67 S.Ct. 385; see also United Phosphorus, 164 F.R.D. at 248 (discussing analogous provision). On the other hand, the opinion work product doctrine precludes discovery of the mental impressions, conclusions, opinions or legal theories of an attorney. The reason for this is that “proper preparation of a client’s case demands that [the attorney] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.” Hickman, 329 U.S. at 510-11, 67 S.Ct. 385. Accordingly, an attorney’s memory, notes and impressions of oral statements of witnesses interviewed in the course of preparing for litigation are also a form of opinion work product which merits special protection. Upjohn Co. v. United States, 449 U.S. 383, 400-01, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (holding that to extent not covered by attorney-client privilege, evaluation of witness statements protected by attorney work product doctrine). The selection and compilation of documents by counsel in preparation for pretrial discovery and litigation has repeatedly been held to fall within the highly protected category of opinion work product. Shelton, 805 F.2d at 1329 (holding adversary is precluded from forcing an attorney to identify the items relied upon to develop its legal theories of the case); Sporck v. Peil, 759 F.2d 312, 316 (3d Cir.1985). As outlined earlier, Sparton wants Mr. Allahut to identify and explain his rationale for relying upon the group of background contractual and technical items he reviewed in preparing to negotiate the proposed settlement agreement and subsequent revisions thereto. Plaintiff also wants to know about Mr. Allahut’s communications with government employees and contractors. Obviously Mr. Allahut’s mental impressions and legal strategy could be disclosed if he was compelled to testify about the evidence he considered reliable with regard to the issues and the Navy’s defenses in this litigation. Shelton, 805 F.2d at 1329; Sporck, 759 F.2d at 315; see also Hickman, 329 U.S. at 510-11, 67 S.Ct. 385. The specific subset of items Mr. Allahut relied upon, out of" }, { "docid": "14938108", "title": "", "text": "an implied request for legal advice based thereon, . . . ” Id. at 46. . United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). In citing Hickman as the Court’s initial recognition of “a qualified privilege for certain materials prepared by an attorney ‘acting for his client in anticipation of litigation,’ ” Id. at 237-38, 95 S.Ct. at 2170, the Court extended the protection to include the work product of agents for the attorney. “[T]he doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.” Id. at 238-9, 95 S.Ct. at 2170. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). In determining the propriety of any of the discovery devices attempted to obtain statements of witnesses and other information secured by adverse counsel, the court held that it is improper “to inquire into materials collected by an adverse party’s counsel in the course of preparation for possible litigation.” Id. at 505, 67 S.Ct. at 391. “Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the ‘work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in" }, { "docid": "22091815", "title": "", "text": "statements of witnesses made prior to trial, and to further disclose information gathered through oral interviews which the attorney did not subsequently record. Because the court’s opinion is so pertinent to the petition presently before this Court, we quote from it at length. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case [153 F.2d 212, 223] as the “Work product of the lawyer.” Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. ****** [A]s to oral statements made by witnesses to Fortenbaugh, whether presently in the form of his mental impressions or memoranda, we do not believe that any showing of necessity can be made under the circumstances of this case so as to justify production. Under ordinary conditions, forcing an attorney to repeat or write out all that witnesses have told him and to deliver the account to his adversary gives rise to grave dangers of inaccuracy and untrustworthiness. No legitimate purpose is served by. such production. The practice forces the attorney to testify as to what he remembers or what he saw fit to write down regarding witnesses’ remarks. Such testimony could not qualify as evidence;" }, { "docid": "14938109", "title": "", "text": "the discovery devices attempted to obtain statements of witnesses and other information secured by adverse counsel, the court held that it is improper “to inquire into materials collected by an adverse party’s counsel in the course of preparation for possible litigation.” Id. at 505, 67 S.Ct. at 391. “Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the ‘work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.” Id. at 511, 67 S.Ct. at 393-394. Spaulding v. Denton, 68 F.R.D. 342 (D.Del. 1975). In holding that some reports of a marine surveyors firm investigating the sinking of a yacht were work product, the court cited the Rule 26(b)(3) codification of work product immunity, as authority for the application of the doctrine to materials prepared by non-lawyers. Burlington Industries v. Exxon Corp., 65 F.R.D. 26 (D.Md.1974). Plaintiff, in a patent infringement action, resisted discovery, asserting work product immunity. In setting out the rules under which a Master would appraise the applicability of plaintiffs claims of privilege, the court stated: “The work product doctrine assures an attorney that his private files shall, in the absence" }, { "docid": "22655951", "title": "", "text": "strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the “work product of the lawyer.” Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. We do not mean to say that all written materials obtained or prepared by an adversary’s counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had. Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty. Were production of written statements and documents to be precluded under such circumstances, the liberal ideals of the deposition-discovery portions of the Federal Rules of Civil Procedure would be stripped of much of their meaning. But the general policy against invading the privacy of an attorney’s course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy" }, { "docid": "23188015", "title": "", "text": "been guided in applying the work product doctrine by the Supreme Court’s decision in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). There the Court said: Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of any attorney. Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper ' preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, corre spondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the “work product of the lawyer.” Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of eases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. We do not mean to say that all written materials obtained or prepared by an adversary’s counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and nonpriv-ileged facts remain hidden in an attorney’s file and where production of those facts is essential to the" }, { "docid": "17674243", "title": "", "text": "the. adversary process: Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to. be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible ways—aptly though roughly termed by the Circuit Court of Appeals in this case as the “work product of the lawyer.” Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. Id. at 510-11, 67 S.Ct. at 393-94. It is clear from the Supreme Court’s articulation of the policy of the work product immunity that it is the work product of the attorney preparing for litigation that requires protection from discovery. See United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975). In a more recent district court case it was stated that: any report or statement made by or to a party’s agent (other than to an attorney acting in the role of counsellor), which has not been requested by nor prepared for an attorney nor which otherwise reflects the employment" }, { "docid": "22655950", "title": "", "text": "as those concepts are used in these rules. Here is simply an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party’s counsel in the course of his legal duties. As such, it falls outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims. Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney. Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their coun sel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the “work product of the lawyer.” Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. We do not mean to say that all written materials obtained or prepared by an adversary’s counsel with" }, { "docid": "4474181", "title": "", "text": "to protection. Rule 26(b)(3) is very specific and direct in its application and requires the district judge to take specific sequential steps when a claim is made that material should be protected because of trial preparation. These steps should be taken against the admonition of Justice Murphy in Hickman: In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the “work product of the lawyer.” Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. Hickman, 329 U.S. at 510-11, 67 S.Ct. at 393-94. When a claim that materials have been “prepared in anticipation of litigation or for trial” is made, the court must go through the sequential steps set out in Fed.R.Civ.P. 26(b)(3) as follows: 1. The party requesting discovery must first show that, as defined in Rule 26(b)(1), the materials requested are “relevant to the subject matter involved in the pending litigation” and not privileged. Because the application of subdivision (b)(3) is limited to “documents and tangible things" } ]

[ { "docid": "12593357", "title": "", "text": "spasms, muscle weakness, diminished reflexes, and pain, all of which support his opinion. Laboratory reports showing spondyloarthrosis, arthritis in the lumbar and lumbosacral facet joints, and some narrowing of the [spinal] canal also support the opinion. The claimant’s normal neurological report does not negate the reality of his other back problems but merely limits them to non-nerve related damage. A medical opinion based on objective tests results, an evaluation of the patient’s medical history, physician observations of the patient, and physician evaluation of the patient’s subjective complaints of pain, as is the case here, “is medical evidence supporting a claim of disabling pain, even if the objective test results, taken alone do not fully substantiate the claim.” Nieto v. Heckler, 750 F.2d 59, 61-62 (10th Cir.1984). Here, the medical opinion of disability is not based on pain alone but is also based on actual loss of strength and flexibility in the back and legs. It constitutes substantial evidence of the inability to perform other work in the national economy on any kind of regular and sustained basis. The AU was not justified in discounting the views of the treating physician as to the claimant’s deteriorating condition and instead relying on the treating physician’s earlier expectation that the claimant would be able to return to work that did not require heavy lifting. The record discloses that after the fusion operation, post-recuperation onset of acute back strain followed by a new injury, both requiring hospitalization and producing a poor recovery, altered Dr. Hayes’ opinion of claimant’s employment prognosis, yet the AU continued to rely on the old prognosis. Such reliance in the face of continuing and supportable evidence of severe back impairment was not justified. Nor was the AU’s acceptance of Dr. Hayes’ opinion that the claimant could do no prolonged standing or walking while rejecting his opinion that the claimant could do no lifting. Cf. Jozefowicz v. Heckler, 811 F.2d 1352, 1358-59 (10th Cir.1987) (good cause, including specific, legitimate reasons required for rejecting part while accepting other part of treating physicians’ medical opinions). The only other evidence that the claimant could" } ]

[ { "docid": "22393613", "title": "", "text": "of the claimant’s impairments including the claimant’s symptoms, diagnosis and prognosis, and any physical or mental restrictions. See id. §§ 404.1527(a)(2), 416.-927(a)(2). The Secretary will give controlling weight to that type of opinion if it is well supported by clinical and laboratory diagnostic techniques and if it is not inconsistent with other substantial evidence in the record. See id. §§ 404.1527(d)(2), 416.927(d)(2). A treating physician may also proffer an opinion that a claimant is totally disabled. That opinion is not dispositive because final responsibility for determining the ultimate issue of disability is reserved to the Secretary. Id. §§ 404.1527(e)(2), 416.927(e)(2). In contrast to the situation in the Second Circuit, see Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir.1993) (new regulations are valid and binding on court even though they are at variance with prior circuit precedent), in this circuit the regulations have merely codified existing law. See Sorenson v. Bowen, 888 F.2d 706, 711 (10th Cir.1989) (Secretary must give substantial weight to treating physician’s opinion), Williams, 844 F.2d at 758 (treating physician’s conclusion regarding disability does not mandate finding of disability by Secretary). The treating physician opined that plaintiff was totally disabled at step three. Clearly, this opinion is not binding on the Secretary in making his ultimate determination of disability. Further, the treating physician’s opinion that plaintiffs physical problems are severe and disabling is also not supported by the record. A treating physician’s opinion may be rejected if his conclusions are not supported by specific findings. See 20 C.F.R. § 404.-1527(d); Hamilton, 961 F.2d at 1498. The ALJ rejected the treating physician’s opinion here because the treating physician’s own office records did not support his later expressed opinion that plaintiff was totally disabled. The treating physician did not suggest plaintiffs condition had deteriorated since his last examination of plaintiff when he had opined that plaintiff could return to some kind of light or sedentary work. Cf. Harris v. Secretary of Health & Human Servs., 821 F.2d 541, 544 (10th Cir.1987) (ALJ not justified in discounting treating physician’s new opinion that claimant’s condition was deteriorating, thus changing physician’s prior" }, { "docid": "1422293", "title": "", "text": "I cannot say that the ALJ’s analysis of the objective medical evidence was contrary to substantial evidence. I do, however, find that the ALJ erred in rejecting the plaintiff’s subjective evidence of pain. These two conclusions shall be discussed in turn below. The medical evidence firmly established a physical basis for a moderate degree of pain, but sharply conflicted on whether a clinical basis existed for severe intractable arthritic pain. Dr. Taylor’s opinion, as the plaintiff’s treating physician, was entitled to great weight. Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978). However, other physicians who examined the plaintiff and reported in detail on the objective medical data found no significant or totally disabling impairment. The plaintiff himself admits that the cause of his pain is not clearly discernable. The plaintiff argues that the ALJ erred in relying on Dr. Montgomery’s report because Dr. Montgomery never examined the plaintiff but only evaluated existing medical evidence. However, the ALJ did not identify any single factor or medical opinion as decisive in his decision. Even if Dr. Montgomery’s report were excluded from the record, substantial evidence remains based on the reports of examining physicians to support the ALJ’s conclusions. On the issue of pain, the ALJ correctly stated that “[p]ain seems to be at the heart of claimant’s arthritic complaints.” (Decision at 14). However, he refused to give full weight to the plaintiff’s testimony, and concluded that he failed to prove “severe intractable pain during the period in issue which precluded him from doing sedentary to light work.” (Decision at 17). It is well established that pain itself can be disabling under the Social Security Act: Even pain unaccompanied by any objectively observable symptoms, which is nevertheless real to the sufferer and is so intense as to be disabling, will support a claim for disability benefits. Sayers v. Gardner, 380 F.2d 940, 948 (6th Cir. 1967), citing Ber v. Celebrezze, 332 F.2d 293 (2d Cir. 1964). Although the record does contain medical opinions suggesting that the plaintiff’s physical impairments were not so severe as to preclude him from performing light or" }, { "docid": "11486324", "title": "", "text": "discomfort. Plaintiff had a full range of motion of the spine. Heel and toe gait was normal. Lumbar spine x-rays revealed a spondylolysis, bilaterally, at L5 \"with a minimal slip anteriorly. Dr. Marón recommended Williams flexion exercises and bracing. He advised plaintiff to avoid heavy weight lifting, but thought plaintiff could perform sedentary, light, or moderate work. Dr. Marón also thought plaintiff might be able to return to his job as a painter once he got over this episode. Appellant’s App. at 140. Dr. Maron’s report unambiguously establishes that plaintiff was able to do sedentary, light, and moderate work during the relevant time period, and therefore was not disabled at that time. Thus, if Dr. Maron’s report is considered, the ALJ was not required to call a medical advisor under Ruling 83-20. Plaintiff contends, however, that Dr. Maron’s report should be given little if any weight because Dr. Marón examined him only once and therefore was not a treating physician. A treating physician’s opinion about the nature and severity of a claimant’s impairments will be given controlling weight under certain circumstances. See Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir.1994). A treating physician’s opinion generally is favored over that of a consulting physician. Talbot v. Heckler, 814 F.2d 1456, 1463 (10th Cir.1987). However, “[t]he treating physician rule governs the weight to be accorded the medical opinion of the physician who treated the claimant ... relative to other medical evidence before the fact-finder, including opinions of other physicians.” Kemp v. Bowen, 816 F.2d 1469, 1476 (10th Cir.1987) (quotation omitted) (emphasis added). Dr. Maron’s report was the only medical evidence submitted pertaining to the relevant time period. Plaintiffs later treating physicians did not express an opinion as to whether he was disabled during this time period. Therefore, the treating physician rule does not dictate that Dr. Maron’s report be given little or no weight. There is substantial evidence supporting the ALJ’s finding that plaintiffs onset date was after June 30,1989. The date an impairment forces a claimant to stop working is of great significance in determining" }, { "docid": "23320667", "title": "", "text": "together, constituted severe impairments that precluded plaintiff from performing her past work as an attorney and a teacher, plaintiff nevertheless retained the residual functional capacity to perform sedentary work. The ALJ found that the objective medical evidence did not support plaintiffs subjective complaints of disabling pain or her allegations of severe functional incapacity. In reaching this conclusion, the ALJ discounted the residual functional capacity assessments and opinions of “permanent” and “total” disability provided by plaintiffs treating physicians. Because the ALJ found that the treating physicians’s opinions were not adequately supported by medically acceptable evidence and were inconsistent with other substantial evidence in the record (including the findings of both independent and state agency physicians), the ALJ determined that the treating physicians’ opinions were not entitled to controlling weight under 20 C.F.R. § 404.1527. After considering plaintiffs allegations of physical disability, the ALJ proceeded to evaluate the medical evidence concerning her mental health. Included in the medical record were reports from plaintiffs psychiatrist, which indicate that Kamerling is depressed, suffers from significant pain, cannot concentrate effectively, and is unable to function effectively in her work as an attorney. The reports state, moreover, that plaintiff was being treated with anti-depressants and supportive psychotherapy. A mental residual functional capacity assessment performed by a state psychologist also indicates that plaintiff suffers from an affective disorder that often limits plaintiffs social functioning and concentration, but that there is no evidence of organic mental, psychotic, personality, or anxiety-related disorders. Kamerling has, throughout the disability determination process, strenuously denied that she has a mental impairment. In his decision, the ALJ observed that the physicians’ and psychologist’s treatment notes, as well as plaintiffs numerous letters to the Office of Hearings and Appeals, indicate that Kamerling suffers from a personality disorder with depression and maladaptive behavior that may preclude her from returning to her past relevant work. The ALJ determined, however, that the written record did not show that Kamerling has a severe mental impairment that prevents her from engaging in substantial gainful activity. Since Kamerling’s claim survived the first four steps of the disability determination inquiry, the burden" }, { "docid": "5786120", "title": "", "text": "pain medications, that he ambulated with difficulty and appeared to be in “moderate distress,” but that he dressed and undressed with “minimal difficulty,” and that there was no atrophy or motor abnormality in his lower extremities. An accompanying x-ray report evidenced only “minimal degenerative changes.” [AR 97]. Dr. Bagnor made no determination, either positive or negative, regarding plaintiff’s ability to work. In mid January 1984, two non-examining physicians for the Office of Disability Determinations reviewed the medical evidence of record, including Dr. Bagner’s report and plaintiff’s three hospital reports noted above, and both concluded that plaintiff was capable of performing either sedentary or light work. [AR 98, 49]. At least one of these doctors specifically found that plaintiff was capable of sitting for at least six hours. [AR 49]. The court observes that in support of his disability application, plaintiff submitted no records from his own treating physicians, Dr. Rosen and Dr. Reis, whom he was allegedly seeing weekly at the time of the application. [AR 73, 81]. Other than some entries by Dr. Rosen and Dr. Reis in the records of plaintiff’s various hospitalizations, the evidence up to the present includes no other evaluations by either doctor, notwithstanding requests made to both doctors by the Social Security Administration that a medical report form be submitted. [AR 94,100]. The court also notes that plaintiff’s hearing testimony, in which he stated that he was not seeing a physician regularly and had only telephone contact with Dr. Rosen in order to obtain prescription pain medications [Tr. 34, 35], is somewhat inconsistent with plaintiff’s earlier statements on his benefits applications that he was variously seeing Dr. Rosen or Dr. Reis weekly. [AR 73, 81] [But see AR at 39]. At the hearing before the AU held in June 1984, plaintiff testified that he was unable to work because of the pain and insomnia associated with his back prob lems. He also testified that he had stopped working on the advice of Dr. Rosen, his treating physician. [AR 26] There is no evidence other than plaintiffs own testimony that this was the case, however," }, { "docid": "16787816", "title": "", "text": "and he gives adequate reasons for his decision, Reyes, 845 F.2d at 244. I. Eggleston’s allegations of error fall into two groups. The first group of challenges involves the AU’s determination that his impairment is not of the severity of an impairment listed in the regulations, 20 C.F.R. Part 404, Subpt.P.App.l § 1.05 C, and that he retains the capacity to do light work. Eggleston argues that the AU did not give proper weight to a report prepared by Dr. Freede who had been his treating physician and performed his surgeries. In Reyes, we stated that “the Secretary must give substantial weight to the evidence and opinion of the claimant’s treating physician, unless good cause is shown for rejecting it.” 845 F.2d at 244-45. However, a treat ing physician’s opinion may be rejected if the Secretary gives specific, legitimate reasons for doing so. Id. at 245. The record contains several reports prepared by Dr. Freede while Eggleston was in his care. These reports indicate that Eggleston was not so severely disabled that he could not return to his work as a welder. The record also contains a report prepared by Dr. Freede approximately three years after he last saw Eggleston. This report indicates that Eggleston is completely disabled. It is this later report upon which Eggleston bases his argument. Only one examining physician agreed with Dr. Freede’s later report. The other four examining physicians found that Eggleston suffered some, but not total, disability. The ALJ’s opinion indicates that he considered all of the medical reports in the record in making his determination that Eggleston retains the capacity to do light work. Considering the examining physicians’ findings, the inconsistencies between the reports Dr. Freede made while treating Eggleston and the later report, we find the AU did not err in not giving substantial weight to Dr. Freede’s later report. Next Eggleston argues that the AU failed to credit his testimony regarding his pain. The AU did find the claimant’s testimony to be at least partially credible. The AU noted that Eggleston “doubtlessly experiences some discomfort,” and found that Eggleston is disabled" }, { "docid": "22393611", "title": "", "text": "LUNGSTRUM, District Judge. Plaintiff George Castellano appeals from an order of the district court affirming the Secretary’s decision denying him Social Security disabihty benefits. We affirm. Plaintiff apphed for benefits alleging dis-abihty as of September 1987. Plaintiff claimed he was disabled due to cervical degenerative disc disease and cervical, thoracic, and lumbar strain with resulting myofascial pain. The administrative law judge (ALJ) denied benefits at step five, see Williams v. Bowen, 844 F.2d 748, 750 (10th Cir.1988), holding that plaintiff retained the residual functional capacity to perform the full range of hght and sedentary work. On appeal, plaintiff argues the medical evidence does show that he is disabled, particularly because his treating physician found that plaintiff’s impairment was equal to a hsted impairment. See 20 C.F.R. § 404, Subpt.P, App. 1, Sec. 1.05 A and C. Plaintiff also argues the ALJ substituted his opinion for that of the treating physician’s and the ALJ erred in applying the grids because plaintiffs pain is disabling. We review the Secretary’s decision to determine whether her factual findings are supported by substantial evidence in the record viewed as a whole and whether she apphed the correct legal standards. See Andrade v. Secretary of Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir.1993). Substantial evidence is “ ‘such relevant evidence as a reasonable mind might accept as adequate to support á conclusion.’” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). We do not reweigh the evidence. Hamilton v. Secretary of Health & Human Servs., 961 F.2d 1495, 1498 (10th Cir.1992). Plaintiff argues the ALJ erred in not crediting his treating physician’s opinion, expressed in a letter to counsel, that plaintiff was totally disabled at step three. In 1991, the Secretary adopted new regulations addressing the weight the Secretary will give to opinions proffered by a treating physician. See 20 C.F.R. §§ 404.1527, 416.927. A treating physician may offer an opinion which reflects a judgment about the nature and severity" }, { "docid": "22079568", "title": "", "text": "on Ms. White’s own assertion that her hand was weak and that she could carry a milk container only a short distance. Dr. Fanning also repeated and expanded her earlier restrictions with respect to Ms. White’s ability to sit or stand continuously as well her limited tolerance of heights, moving machinery, and cold temperatures. Again, Dr. Fanning did not identify the medical findings supporting these limitations. Finally, Dr. Fanning signed a note stating that Ms. White was unable to return to her then-current job due to chronic back pain. Four months later, in October 1997, Dr. Fanning issued a second notice stating that Ms. White was unable to return to work. Once again there is no indication that the note followed a medical examination. Dr. Fanning’s records reveal, however, that the pain medication she had earlier prescribed was helping Ms. White. A third notice to Ms; White’s employer came in December 1997; Dr. Fanning’s notes from that meeting confirm a diagnosis of chronic back pain but contain no additional information. In January 1998, Dr. Fanning took another X-ray of Ms. White’s back. It showed her condition was unchanged from the previous X-ray that had been taken in 1996. IV. DISREGARDING THE TREATING PHYSICIAN’S OPINION The ALJ must give “controlling weight” to the treating physician’s opinion, provided that opinion “is well-supported ... and is not inconsistent with other substantial evidence.” 20 C.F.R. § 404.1527(d)(2). We have said that a treating physician’s opinion is not dispositive on the ultimate issue of disability. Castellano, 26 F.3d at 1029. In addition to its consistency with other evidence, we examine a treating physician’s opinion with several factors in mind: the length of the treatment relationship, the frequency of examination, and the extent to which the opinion is supported by objective medical evidence. 20 C.F.R. § 404.1527(d)(2). Here the ALJ acknowledged Dr. Fanning’s limited assessment of Ms. White’s ability to perform work-related activities. But we agree with the district court that he set forth specific and legitimate reasons for discounting the doctor’s opinion. He noted first the discrepancy between Dr. Fanning’s very restrictive functional assessment and" }, { "docid": "7034246", "title": "", "text": "following specific reasons: (1) because he was receiving workers’ compensation temporary total disability payments, the claimant “may not have had a financial incentive to return to work;” (2) “no treating or examining physician of record has” opined that the claimant is disabled; (3) “a global assessment of functioning shows that depression is not significantly disabling,” and has not been diagnosed as expected to last for twelve months, and the claimant has not received treatment or been prescribed medications for the depression; (4) “the treating physicians have opined that these [cerebellum] abnormalities are not totally disabling;” (5) despite “allegations of overwhelming pain in multiple anatomical areas,” the claimant “is not taking any prescriptive pain medications,” (6) no adverse side effects from the pain medications used are alleged or shown in the record; (7) the claimant’s range of activities, including his housework and walking on his father’s work, is inconsistent with total disability; (8) the claimant’s description of his pain as “ambient and moving in nature and not in the same location all the time” is not “substantiated by outpatient treatment records, clinical findings or any opinion from any physician of record;” (9) “one of claimant’s treating physicians has indicated that claimant can work despite his pathology (Exhibit 28).” (Tr. 14-15). “ ‘To establish disabling pain without explicit confirmation of treating physicians may be difficult. Nonetheless, the claimant is entitled to have his nonmedical objective and subjective testimony of pain evaluated by the ALJ and weighed alongside the medical evidence. An ALJ may not ignore the evidence and make no findings.’ ” Kepler v. Chater, 68 F.3d 387, 390 (10th Cir.1995) (quoting Huston v. Bowen, 838 F.2d at 1131 (citations omitted)). Where there is evidence of allegedly disabling pain, courts in the Tenth Circuit look to Luna v. Bowen, 834 F.2d 161 (10th Cir.1987), for the framework of proper analysis: “We must consider (1) whether Claimant established a pain-producing impairment by objective medical evidence; (2) if so, whether there is a ‘loose nexus’ between the proven impairment and the Claimant’s subjective allegations of pain; and (3) if so, whether considering all the" }, { "docid": "20227819", "title": "", "text": "was minimally tender, had negative straight leg raises, and had good strength and sensation. (Tr. 586.) He also opined that plaintiffs X-rays showed a fairly stable appearance, that he was definitely better in terms of his preexisting neurogenic condition, and that “not much else” could be done. (Id.) Contrary to his own assessment, even Dr. Schenone noted that as of February 19, 1998 plaintiff had “generally been feeling well,” denied any chest pain, and had only “intermittent back discomfort.” (Tr. 568.) On August 19, 1998, he referred plaintiff to Dr. Gaylon as he was complaining of “some” back pain. (Tr. 569.) Dr. Sche-none remarked on August 17, 1999 that plaintiff had normal peripheral pulses in his upper and lower extremities. (Tr. 590.) Plaintiff primarily relies on the evaluations of Drs. Schenone and Lamb, a physician’s assistant (“PA”), Gonzalez, and a non-examining review physician from the Department of Social Services to support the position that his RFC is below the requirements of sedentary work. As discussed above, Dr. Schenone’s November 17, 1999 evaluation is not supported by the majority of the postoperative evidence, which indicates that plaintiff was much improved following his surgeries. In fact, Schenone’s opinion runs counter to many treating opinions (including his own) that indicate plaintiffs overall condition was much improved following the two procedures. Dr. Lamb’s evaluation is equally unsupported. This evaluation was conducted on July 17, 1996, four months prior to his corrective back surgery and does not reflect the postoperative evidence within the record. (Tr. 234-237.) Similarly, the opinion of the reviewing physician from the Department of Social Services, like the evaluation of Dr. Lamb, was made several months prior to plaintiffs back surgery. (Tr. 563.) This physician’s opinion that plaintiff was disabled does not find support in the postoperative evidence within the record. Finally, the ALJ did not err in failing to credit PA Gonzalez’s opinion. The ALJ rejected this opinion because he found no evidence in the record which indicated that Gonzalez had ever examined plaintiff prior to issuing his opinion. Plaintiff suggests that Gonzalez’s medical entry indicating “pt. Seen to complete disability" }, { "docid": "8246528", "title": "", "text": "to the severity of plaintiffs emotional impairments, which barred a judicial award of benefits where, inter alia, plaintiffs treating psychiatrist originally opined that plaintiff was disabled from doing any work but later stated that he might be a “suitable candidate for job training”). Plaintiff also argues that the ALJ ignored Dr. Wallace’s opinions that plaintiffs condition was slowly progressive and that plaintiff was limited in his abilities to walk, stand, stoop, kneel, lift, reach, push, and pull. (Pl.’s Mem. Supp. Reversal at 8.) The record, however, does not support this claim. In his Medical Examination Report, Dr. Wallace indicated that plaintiffs capacities for walking, standing, stooping, kneeling, lifting, reaching, pushing, and pulling were all limited but not entirely precluded. (AR at 194.) Consistent with this opinion, the ALJ found limitations on plaintiffs abilities to engage in essentially all of these activities. Accordingly, plaintiffs contention that the ALJ failed to properly consider the opinions of his treating physicians must fail. While plaintiff contends that the ALJ’s opinion is “without medical basis” because he did not wholly adopt the opinions of the state agency physicians or plaintiffs treating physicians (see Pl.’s Mem. Supp. Reversal at 9), it was the ALJ’s duty to consider the entire record rather than to simply adopt the views of one set of physicians. B. The ALJ Properly Evaluated Plaintiffs Subjective Complaints of Pain Plaintiffs second basis for reversal of the SSA’s decision is that the ALJ failed to properly assess his subjective complaints of pain. (PL’s Mem. Supp. Reversal at 10-12.) SSA regulations prescribe a two-step process for determining whether a claimant is disabled by pain. 20 C.F.R. §§ 404.1529, 416.929. “First, the claimant must adduce ‘medical signs or laboratory’ findings evidencing a ‘medically determinable impairment that could reasonably be expected to produce’ the alleged pain.” Butler v. Barnhart, 353 F.3d 992, 1004 (D.C.Cir.2004) (quoting 20 C.F.R. §§ 404.1529(a)-(b), 416.929(a)-(b)). Second, the ALJ must evaluate “the persistence and intensity of the claimant’s pain as well as the extent to which it impairs [his] ability to work.” Id. (citing 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1)). In making this evaluation," }, { "docid": "11486325", "title": "", "text": "given controlling weight under certain circumstances. See Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir.1994). A treating physician’s opinion generally is favored over that of a consulting physician. Talbot v. Heckler, 814 F.2d 1456, 1463 (10th Cir.1987). However, “[t]he treating physician rule governs the weight to be accorded the medical opinion of the physician who treated the claimant ... relative to other medical evidence before the fact-finder, including opinions of other physicians.” Kemp v. Bowen, 816 F.2d 1469, 1476 (10th Cir.1987) (quotation omitted) (emphasis added). Dr. Maron’s report was the only medical evidence submitted pertaining to the relevant time period. Plaintiffs later treating physicians did not express an opinion as to whether he was disabled during this time period. Therefore, the treating physician rule does not dictate that Dr. Maron’s report be given little or no weight. There is substantial evidence supporting the ALJ’s finding that plaintiffs onset date was after June 30,1989. The date an impairment forces a claimant to stop working is of great significance in determining the onset date. Ruling 83-20 (West’s Soc.Sec.Rptg.Serv.Rulings 1983-91, at 50). Plaintiff was able to work through October 1989. This fact, coupled with Dr. Maron’s opinion that plaintiff could perform moderate work as of April 1989, provides substantial evidence for the ALJ’s finding. The second issue is whether the ALJ improperly analyzed plaintiffs subjective complaints of disabling pain. We recently held that an analysis of the credibility of subjective complaints of disabling pain is inadequate if the ALJ merely states a conclusion that pain is not disabling without making express findings with reference to relevant evidence. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.1995). Although it appears the ALJ’s pain analysis in the present case suffers from the same infirmity as in Kepler, we need not resolve the issue because plaintiff never testified he was disabled by pain be fore June 30,1989. Rather, he testified that he was beset by totally disabling pain when he finished his furniture building job. Appellant’s App. at 75. Other evidence of record establishes that the furniture building job ended" }, { "docid": "3173617", "title": "", "text": "regarding performing yard work and mowing the lawn, helping with cooking and housework, daily gardening, automobile maintenance, and hunting and fishing. The ALJ also stated that the plaintiffs own testimony at the hearing suggested that he could handle many of the sedentary, light and medium jobs identified by the vocational expert. Tr. 11. The ALJ further noted that plaintiff had no outward signs of chronic pain or ill health. Tr. 12. In assessing credibility, the ALJ must consider all evidence, both objective and subjective. Hamilton v. Secretary of Health & Human Services, 961 F.2d 1495, 1498 (10th Cir.1992). Credibility determinations are the province of the ALJ. Id. at 1499. However, in the present case, the ALJ failed to consider several factors relevant to the credibility analysis. Regarding plaintiffs complaints of disabling pain, the ALJ failed to consider the reasons for the frequency or infrequency of medical contacts, including perhaps financial inability to obtain medical care. The ALJ failed to address the documented problem with addiction to prescription pain medication. The ALJ failed to consider both the medical and nonmedical attempts to obtain relief, e.g., biofeedback, chiropractic, physical therapy, traction, use of a TENS unit, injections, and daily exercises. The ALJ did not address the fact that doctors have informed plaintiff that there is no surgical solution to his problem. The ALJ also did not address the fact that a specific diagnosis has eluded various treating physicians. Previous attempts at treatment have been ineffective and no new course of treatment has been identified by plaintiffs treating physicians. The ALJ should also consider the fact that none of the treating physicians ever expressed doubt about the plaintiffs complaints of pain or accused him of malingering. On remand, the ALJ should consider these and any other relevant factors regarding the plaintiffs complaints of pain and the credibility thereof. While plaintiff refers to his daily activities as sporadic diversions, the ALJ is entitled to consider the extent of plaintiffs daily activities in determining whether the plaintiffs complaints of pain are credible. Huston v. Bowen, 838 F.2d at 1132; Luna v. Bowen, 834 F.2d at" }, { "docid": "23288415", "title": "", "text": "determine if the Secretary’s finding of no disability is supported by substantial evidence. 736 F.2d at 366; Allen v. Califano, 613 F.2d 139 (6th Cir.1980). The majority rests its decision to reverse the Secretary’s determination on the judgment of plaintiff’s treating physician', Dr. DelVecchio, that plaintiff was 100% disabled, and other medical proof indicating limitation of motion and pain due to a continuing back problem, restricted lung capacity, and evidence of an arthritic knee condition. A review of the entire record, however, shows a considerable amount of medical evidence that conflicts with his treating physician’s opinion. The opinion of a treating physician is entitled to greater weight than that of a doctor who has seen the claimant only once. Stamper v. Harris, 650 F.2d 108, 111 (6th Cir.1981); Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir.1978). The treating physician’s opinion, however, is not binding on the Secretary, especially when other evidence brings into question its basis and reliability. See 20 C.F.R. § 404.-1527; see also Mongeur v. Heckler, 722 F.2d 1033 (2d Cir.1983); Giddings v. Richardson, 480 F.2d 652, 656 (6th Cir.1973); accord Laffoon v. Califano, 558 F.2d 253, 255-56 (5th Cir.1977). Although Dr. DelVecchio opined that plaintiff was 100% disabled, his diagnosis was inconsistent and conflicting. On June 7, 1977, during a post-hernia operation examination, DelVecchio noted that plaintiff had “minimal arthritis ... in both knees.” He further noted that “physical therapy ... helped his back considerably ... and [he] was sent home without any medication.” At that time, DelVecchio recommended that plaintiff go on a diet and “get some exercise, either bicycle [sic] or jogging.” On June 27,1977, DelVecchio noted that patient came in for an examination with his back in “a thirty degree flexion position.” Yet in a letter to the Bureau of Disability Determination DelVecchio noted that plaintiff “came in all bent over at a 60 degree angle with severe lower back pain requiring physical therapy.” He further stated that plaintiff “had a markedly straightened lumbar spine,” even though x-rays made by and analyzed by Dr. Stupar at DelVecchio’s request had shown “slight straightening of" }, { "docid": "22393615", "title": "", "text": "opinion that claimant would be able to return to work). Instead, the physician indicated plaintiffs condition had not changed since he had first begun treating him. Appellant’s App. at 113. The treating physician’s office notes are supported by objective medical evidence (X-rays have identified no abnormality) and plaintiffs testimony. The office notes show the treating physician reported and credited plaintiffs complaints of pain. However, his examinations have shown that despite the pain, plaintiff had good range of motion in his neck and used pain medication sparingly. Plaintiff testified to minimal use of pain medication ranging from needing no pain medication at all to taking such medication a maximum of twice a day. Plaintiff also testified his usual activities included fixing breakfast for himself and his son and doing some housework. He testified his back, shoulder, and neck act up when he walks too much and he cannot lift his arms over his shoulders. The treating physician consistently opined that plaintiff would not be able to return to his prior work and recommended that plaintiff pursue a vocational rehabilitation plan. Plaintiff testified he is pursuing such a plan and is taking computer courses. The ALJ acted in accordance with the regulations in not accepting the treating physician’s opinion that plaintiff is disabled. The ALJ’s reliance on the grids was not error as the ALJ found plaintiffs testimony regarding his pain not fully credible. See Williams, 844 F.2d at 755 (credibility determinations are province of the ALJ); see also Eggleston v. Bowen, 851 F.2d 1244, 1247 (10th Cir.1988) (presence of nonexertional impairment does not preclude use of grids if nonexertional impairment does not further limit claimant’s ability to perform work). The ALJ’s determination is supported by substantial evidence in the record. The judgment of the United States District Court for the District of New Mexico is AFFIRMED. . 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. . Because the new regulations" }, { "docid": "2080715", "title": "", "text": "a matter of law. Chamberlain is correct when asserting that medical reports of a treating physician are ordinarily entitled to greater weight than the opinion of a consulting physician. See Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir.1989) (citing Ward v. Heckler, 786 F.2d 844, 846 (8th Cir.1986)). However, a treating physician’s opinion is “not conclusive in determining disability status and must be supported by medically acceptable clinical or diagnostic data.” Id. The weight given'a treating physician’s opinion is limited if the opinion consists only of conclusory statements. Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir.1994) (citing Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir.1991)). Dr. Elmendorf failed to discuss the degree of Chamberlain’s decreased range of motion, nor did his report cite any objective medical tests or diagnostic data to support his conclusions that Chamberlain was unable to bend or stoop and was totally disabled. All of Chamberlain’s various x-rays disclosed no abnormalities, and the range of motion exams administered by Drs. Mokhtar and Lee revealed Chamberlain’s ability to occasionally bend or stoop. Also, the ALJ specifically questioned Chamberlain regarding his ability to bend or stoop, to which Chamberlain replied only that he had trouble using the bathroom. Dr. Elmendorfs conclusions regarding Chamberlain’s abilities differ significantly with the evidence in the record as a whole, especially when considering that Dr. Elmendorfs conclusions were drawn only six weeks after Dr. Lee’s. Further, the ALJ did credit Dr. Elmendorfs findings that were consistent with the record. The ALJ followed the substantial evidence in the record and rightly discounted Dr. Elmendorfs con-elusory findings of Chamberlain’s inability to bend or stoop and his total disability. B. Subjective Complaints of Pain Chamberlain contends that the ALJ improperly relied upon inconsistencies in the non-medical record when discounting Chamberlain’s testimony regarding his pain and functional restrictions. The record is clear that the ALJ considered objective medical evidence as well as Chamberlain’s own statements and representations. An ALJ may not disregard a claimant’s subjective pain allegations solely because they are not fully supported by the objective medical evidence. Sullins v. Shalala, 25 F.3d 601," }, { "docid": "22562461", "title": "", "text": "his past relevant work prior to January 18,1989 when he had a heart attack. We must decide whether this decision was supported by substantial evidence. A review of the record indicates that plaintiff apparently did quite well following his 1981 laminectomy with respect to his low back pain and although he complained of some pain, it was noted by his treating physician, Dr. Snyder, a Nashville orthopedic surgeon, that the clinical findings revealed a fairly stable back with good range of motion and no pain' in the legs. It was also noted that by January 1983, plaintiffs back pain had diminished because of his participation in flexion exercises. In March 1983, the motion study showed improvement and straight leg raisings were negative.' Dr. Snyder continued to recommend that plaintiff increase his activities. Plaintiff was placed on medication for inflammation and back pain, and by June 1983, it seemed.to be working. The final report from Dr. Snyder with respect to plaintiffs initial application for disability benefits was July 24, 1984 and plaintiffs physical examination had not changed since the prior examinations. Giving no clinical basis, Dr. Snyder concluded that plaintiff remained permanently and totally disabled as a result of low back pains, secondary to a ruptured disc. We believe that the ALJ properly discounted Dr. Snyder’s opinion of disability. This court has consistently stated that the Secretary is not bound by the treating physician’s opinions, and that such opinions receive great weight only if they are supported by sufficient clinical findings and are consistent with the evidence. See Young v. Secretary of Health and Human Services, 925 F.2d 146, 151 (6th Cir.1990). In Hall v. Bowen, 837 F.2d 272 (6th Cir.1988), this court held that the Secretary may reject a treating physician’s opinion if good reasons are identified for not accepting it. In the present case, Dr. Snyder’s treating records revealed that plaintiffs condition remained essentially unchanged through 1987. In September 1982, Dr. Snyder stated that plaintiff could go hunting. In November 1982, Dr. Snyder indicated that plaintiff engaged in extremely heavy work installing carpeting in motel rooms and that there" }, { "docid": "23320666", "title": "", "text": "when she fell down several flights of stairs on February 28, 1992. Plaintiff alleged a number of symptoms, including degeneration of spinal discs, problems with her joints, tremors, difficulty concentrating and sleeping, and depression. The SSA denied plaintiffs application initially and upon reconsideration. In denying Kamerling’s request for benefits, the SSA stated that, although plaintiffs physical and emotional problems prevented her from returning to her previous job as an attorney, the medical evidence indicated that plaintiff had the ability to perform work at the sedentary level. Plaintiff appealed, but, after making a request for a hearing before an administrative law judge, Kamerling waived her right to appear and, after being fully advised of her right to counsel, proceeded pro se. No hearing was held and, on January 31, 1995, the ALJ issued a decision finding Kamerling not to be disabled. Applying the familiar five-step sequential evaluation for determining whether a person is disabled, see 20 C.F.R. § 416.920, the ALJ concluded that Kamerling was not disabled because, although plaintiffs physical and emotional symptoms, when considered together, constituted severe impairments that precluded plaintiff from performing her past work as an attorney and a teacher, plaintiff nevertheless retained the residual functional capacity to perform sedentary work. The ALJ found that the objective medical evidence did not support plaintiffs subjective complaints of disabling pain or her allegations of severe functional incapacity. In reaching this conclusion, the ALJ discounted the residual functional capacity assessments and opinions of “permanent” and “total” disability provided by plaintiffs treating physicians. Because the ALJ found that the treating physicians’s opinions were not adequately supported by medically acceptable evidence and were inconsistent with other substantial evidence in the record (including the findings of both independent and state agency physicians), the ALJ determined that the treating physicians’ opinions were not entitled to controlling weight under 20 C.F.R. § 404.1527. After considering plaintiffs allegations of physical disability, the ALJ proceeded to evaluate the medical evidence concerning her mental health. Included in the medical record were reports from plaintiffs psychiatrist, which indicate that Kamerling is depressed, suffers from significant pain, cannot concentrate effectively," }, { "docid": "22393614", "title": "", "text": "disability does not mandate finding of disability by Secretary). The treating physician opined that plaintiff was totally disabled at step three. Clearly, this opinion is not binding on the Secretary in making his ultimate determination of disability. Further, the treating physician’s opinion that plaintiffs physical problems are severe and disabling is also not supported by the record. A treating physician’s opinion may be rejected if his conclusions are not supported by specific findings. See 20 C.F.R. § 404.-1527(d); Hamilton, 961 F.2d at 1498. The ALJ rejected the treating physician’s opinion here because the treating physician’s own office records did not support his later expressed opinion that plaintiff was totally disabled. The treating physician did not suggest plaintiffs condition had deteriorated since his last examination of plaintiff when he had opined that plaintiff could return to some kind of light or sedentary work. Cf. Harris v. Secretary of Health & Human Servs., 821 F.2d 541, 544 (10th Cir.1987) (ALJ not justified in discounting treating physician’s new opinion that claimant’s condition was deteriorating, thus changing physician’s prior opinion that claimant would be able to return to work). Instead, the physician indicated plaintiffs condition had not changed since he had first begun treating him. Appellant’s App. at 113. The treating physician’s office notes are supported by objective medical evidence (X-rays have identified no abnormality) and plaintiffs testimony. The office notes show the treating physician reported and credited plaintiffs complaints of pain. However, his examinations have shown that despite the pain, plaintiff had good range of motion in his neck and used pain medication sparingly. Plaintiff testified to minimal use of pain medication ranging from needing no pain medication at all to taking such medication a maximum of twice a day. Plaintiff also testified his usual activities included fixing breakfast for himself and his son and doing some housework. He testified his back, shoulder, and neck act up when he walks too much and he cannot lift his arms over his shoulders. The treating physician consistently opined that plaintiff would not be able to return to his prior work and recommended that plaintiff pursue" }, { "docid": "22254713", "title": "", "text": "well known, many physicians (including those most likely to attract patients who are thinking of seeking disability benefits) will often bend over backwards to assist a patient in obtaining benefits,” and therefore “the weight properly to be given to testimony or other evidence of a treating physician depends on circumstances” (internal citations omitted)). An ALJ thus may discount a treating physician’s medical opinion if it the opinion “is inconsistent with the opinion of a consulting physician or when the treating physician’s opinion is internally inconsistent, as long as he minimally articulates his reasons for crediting or rejecting evidence of disability.” Skarbek, 390 F.3d at 503 (internal quotations and citations omitted). In this case, the ALJ provided an adequate explanation of his decision not to give controlling weight to Dr. Jalil’s and Dr. Desmonde’s opinions. Regarding Dr. Jalil’s December 2003 statement that Schmidt was incapable of performing even sedentary work, the ALJ found that diagnosis was not supported by the medical evidence in the record. For example, Dr. Jalil’s February 2003 treatment notes indicate that Schmidt’s physical examination was benign, and his June 2003 treatment notes indicate that he did not find anything significant despite Schmidt’s complaints regarding numbness and tingling in her extremities. Further, despite Schmidt’s complaints about pain, Dr. Jalil remarked on multiple occasions that her condition was “pretty good” and “very good.” We agree with the ALJ that these statements and others in Dr. Jalil’s treatment notes are inconsistent with Dr. Jalil’s December 2003 conclusion that Schmidt could not perform sedentary work. Further, as the ALJ notes, Schmidt has failed to establish that she suffers from her claimed level of chronic pain because her medical records indicate that she was able to keep her pain in check using various medicines, and that she did not follow through with her physical therapy or pursue pain management. Finally, the “Functional Capacity Questionnaire” on which Dr. Jalil stated that Schmidt could not perform sedentary work is suspect because Schmidt’s attorney apparently drafted it and it did not include any new medical evidence or any other basis to justify these more extreme" } ]

[ { "docid": "22608269", "title": "", "text": "allowed to do service for an appeal.” Sunal v. Large, 332 U. S. 174, 178 (1947). For this reason, non-constitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings. Id., at 178-179; Davis v. United States, 417 U. S. 333, 345-346, and n. 15 (1974). Even those nonconstitutional claims that could not have been asserted on direct appeal can be raised on collateral review only if the alleged error constituted “ 'a fundamental defect which inherently results in a complete miscarriage of justice,’ ” id., at 346, quoting Hill v. United States, 368 U. S. 424, 428 (1962). In construing broadly the power of a federal district court to consider constitutional claims presented in a petition for writ of habeas corpus, the Court in Fay also reaffirmed the equitable nature of the writ, noting that “[discretion is implicit in the statutory command that the judge . . . 'dispose of the matter as law and justice require.’ 28 U. S. C. §2243.” 372 U. S., at 438. More recently, in Francis v. Henderson, 425 U. S. 536 (1976), holding that a state prisoner who failed to malee a timely challenge to the composition of the grand jury that indicted him cannot bring such a challenge in a post-conviction federal habeas corpus proceeding absent a claim of actual prejudice, we emphasized: “This Court has long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power. See Fay v. Noia, 372 U. S. 391, 425-426.” Id., at 539. Compare, e. g., United States v. Re, 372 F. 2d 641 (CA2), cert. denied, 388 U. S. 912 (1967); United States v. Jenkins, 281 F. 2d 193 (CA3 1960); Eisner v. United States, 351 F. 2d 55 (CA6 1965); De Welles v. United States, 372 F. 2d 67 (CA7), cert denied, 388 U. S. 919 (1967); Williams v. United States, 307 F. 2d 366 (CA9 1962); Armstead v. United States, 318 F. 2d 725 (CA5" } ]

[ { "docid": "355808", "title": "", "text": "at 1077 n. 10, quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417, 421 (1962) (\"[e]ven those nonconstitutional claims that could not have been asserted on direct appeal can be raised on collateral review only if the alleged error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice’\"); United States v. Capua, 656 F.2d 1033, 1037-1038 (5th Cir.1981) (alleged defects in jury-selection procedure); Smith v. United States, 635 F.2d 693, 695 (8th Cir.1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1397, 67 L.Ed.2d 368 (1981) (alleged error concerning presence of witness). . Davis v. United States, 417 U.S. 333, 345 n. 15, 94 S.Ct. 2298, 2305 n. 15, 41 L.Ed.2d 109, 118 n. 15 (1974); United States v. McCollom, 664 F.2d 56, 59 (5th Cir.1981), cert. denied, 456 U.S. 934, 102 S.Ct. 1989, 72 L.Ed.2d 454 (1982); United States v. Capua, supra note 94, 656 F.2d at 1037 (dicta). . Grimes v. United States, 607 F.2d 6, 10-11 (2d Cir.1979); Pacelli v. United States, 588 F.2d 360, 362-364 (2d Cir.1978), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979); Hunt v. United States, 456 F.2d 582, 583 (3d Cir.1972); Randall v. United States, 454 F.2d 1132, 1133 (5th Cir.1972), cert. denied, 409 U.S. 862, 93 S.Ct. 151, 34 L.Ed.2d 109 (1972). But see Norris v. United States, 687 F.2d 899, 904 (7th Cir. 1982) (even constitutional claims are barred in § 2255 proceeding by failure to appeal unless cause- and-prejudice test is satisfied); Ramsey v. United States, 448 F.Supp. 1264, 1268-1274 (N.D.Ill. 1978) (same). . Kaufman v. United States, 394 U.S. 217, 227 n. 8, 89 S.Ct. 1068, 1075 n. 8, 22 L.Ed.2d 227, 238 n. 8 (1969). See Chin v. United States, supra note 84, 62 F.2d at 1093 (defendant deliberately failing to raise point on direct appeal could not urge on it collateral attack); United States v. Renfrew, 679 F.2d 730, 731 (8th Cir.1982) (collateral attack barred where defendant dismissed direct appeal on issues); United States v. Barnes, 520 F.Supp. 946, 961 (D.D.C.1981). This" }, { "docid": "23183772", "title": "", "text": "1590-91, 92 L.Ed. 1982 (1947). A non-constitutional claim that could have been, but was not, raised on appeal, may not be asserted by collateral attack under § 2255 absent exceptional circumstances. See Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 3044 n. 10, 49 L.Ed.2d 1067 (1976); Suveges v. United States, 7 F.3d 6, 10 (1st Cir.1993) (applying cause and prejudice standard to procedural default of jurisdictional claim). The Supreme Court has on four occasions considered whether a particular nonconstitu-tional, nonjurisdictional claim was properly brought under § 2255. See Hill, 368 U.S. at 428, 82 S.Ct. at 471 (denial of allocution' at sentencing in violation of Fed.R.Crim.P. 32(a) is not a “miscarriage of justice”); United States v. Timmreck, 441 U.S. 780, 784-85, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979) (error under Fed.R.Crim.P. 11 in procedure for taking a guilty plea not a “miscarriage, of justice”); Addonizio, 442 U.S. at 184-90, 99 S.Ct. at 224CM1 (subsequent change in U.S. Parole Commission’s parole policies not sufficient to constitute basis for collateral attack). In one of these cases, the Court found that the error did justify collateral attack. Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974) (subsequent change in substantive law making defendant’s former behavior lawful does constitute sufficient basis for collateral attack). While the above cases are not on all fours, we think it obvious that Knight’s two claims fall far short of the “miscarriage of justice” standard. Knight’s first claim is essentially that the district court made an erroneous finding of fact which led to the misapplication of the sentencing guidelines. Knight’s second claim is that the district court abused a discretion explicitly committed to it by the sentencing guidelines; Neither claim is based upon an “exceptional circumstance.” Rather, each alleges ordinary errors that could and should have been raised by Knight on direct appeal. And even assuming error was committed, the error would not amount to a “complete miscarriage of justice.” Knight’s eventual sentence was 78 months, within the range that would have been imposed even if" }, { "docid": "10909976", "title": "", "text": "challenge to his RICO conspiracy conviction is built completely on the alleged invalidity of Count One, we similarly uphold his conviction under Count Two for violation of 18 U.S.C. § 1962(d). 2. The Statute of Limitations and the Meaning of “Enterprise” Brennan raises two other challenges to his RICO convictions which he did not raise in his direct appeal to this Court, one based on the statute of limitations and the other based on the statutory meaning, under RICO, of “enterprise.” At trial, Brennan raised the latter argument, but not the former. Because Brennan failed to raise these issues earlier, we must first ask whether he is procedurally foreclosed from doing so now in this collateral proceeding. This question requires consideration of longstanding rules governing procedural foreclosures, along with the more recent development of the cause and prejudice test. a. Procedural Foreclosure of Claims in § 2255 Proceedings As a general rule, the failure to raise a nonconstitutional or nonjurisdictional claim on direct review has long precluded assertion of the claim in a collateral proceeding. See Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 3044 n. 10, 49 L.Ed.2d 1067 (1976); Davis v. United States, 417 U.S. 333, 345 n. 15, 94 S.Ct. 2298, 2305 n. 15, 41 L.Ed.2d 109 (1974); Kaufman v. United States, 394 U.S. 217, 220 n. 3, 89 S.Ct. 1068, 1070 n. 3, 22 L.Ed.2d 227 (1969); Sunal v. Large, 332 U.S. 174, 178-79, 67 S.Ct. 1588, 1590-91, 91 L.Ed. 1982 (1947); Pacelli v. United States, 588 F.2d 360, 363 (2d Cir.1978), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979). Nevertheless, in “ ‘exceptional circumstances,’ ” even a nonconstitutional or nonjurisdictional error can result in a “ ‘complete miscarriage of justice’ ” justifying collateral relief. Davis, 417 U.S. at 346-47, 94 S.Ct. at 2305 (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)). In such circumstances, as, for example, where a subsequent change in the law has resulted in a petitioner’s “conviction and punishment [having been imposed] for an act" }, { "docid": "22963270", "title": "", "text": "States v. Scherer, 673 F.2d 176, 180 (7th Cir. 1982); United States v. Orejuela, 639 F.2d 1055, 1057 (7th Cir. 1981). Another issue raised in the appellant’s section 2255 motion — -that one of the witnesses who testified against the appellant at his trial was not credible — could not properly be raised in a section 2255 motion because it could have been, but was not, raised on direct appeal. See Sunal v. Large, 332 U.S. 174, 178-79, 67 S.Ct. 1588, 1590-91, 91 L.Ed. 1982 (1947). It is true that Kaufman v. United States, 394 U.S. 217, 220, 89 S.Ct. 1068, 1070, 22 L.Ed.2d 227 n.3 (1969), limited the rule of Sunal to non-constitutional errors; but the credibility of a witness is not a constitutional issue. The remaining three grounds in the section 2255 motion are constitutional, and Kaufman holds that the failure to raise a constitutional issue on direct appeal does not prevent raising it later in a section 2255 motion unless the movant was deliberately bypassing the appellate process. See 394 U.S. at 220 n.3, 89 S.Ct. at 1070 n.3; Davis v. United States, 411 U.S. 233, 240, 93 S.Ct. 1577,1581, 36 L.Ed.2d 216 (1973). Nonetheless the district court held that the appellant was barred from raising these issues in a section 2255 motion. With regard to the principal ground (unduly suggestive photo-identification), the court stated that the failure to raise it on direct appeal was “apparently because of a strategic decision” and that “a deliberate failure to raise an issue on appeal precludes its consideration under § 2255,” citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Now it is true that the court held, in the alternative, that these issues were without merit; but the importance of enforcing gatekeeping procedures designed to prevent the courts from being flooded by unworthy postconviction motions every one of which must be, unless it is barred by one of those procedures, painstakingly considered on the merits has persuaded us to consider the correctness of the district judge’s threshold ruling even though it raises more difficult" }, { "docid": "10909995", "title": "", "text": "infra, we have no occasion to examine whether the deliberate bypass test of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), remains the proper standard for the procedural foreclosure of constitutional or jurisdictional issues not raised on direct appeal by federal prisoners. See Norris v. United States, 687 F.2d 899, 902-04 (7th Cir.1982) (finding deliberate bypass test replaced by cause and prejudice test). . In light of the obvious risk of confusion, we note that this Davis case is unrelated to Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), cited supra and infra. . Because we find Brennan’s argument procedurally foreclosed, we do not examine another barrier that could preclude collateral relief, whether the claim would fall within the narrow realm of nonconstitutional or nonjurisdictional claims cognizable under section 2255. See Wright v. United States, 732 F.2d 1048, 1056-57 (2d Cir.1984), cert. denied, 469 U.S. 1106, 105 S.Ct. 779, 83 L.Ed.2d 774 (1985); Fiumara v. United States, 727 F.2d 209, 213 (2d Cir.), cert. denied, 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984). The same comment applies to Brennan’s enterprise argument, discussed infra. . We note that Brennan’s enterprise argument would be considered forfeited even if the cause and prejudice test governed because he has not shown any cause for failing to raise this issue in his direct appeal. . In holding Brennan's enterprise argument to be nonconstitutional in nature, we have considered and rejected his attempt to \"magnify” the importance of his statutory interpretation through references to separation of powers concerns. See Br. of Appellant at 18-21. . In this appeal, Brennan does not frame his challenge to his Travel Act and extortion convictions in terms of misjoinder, as he apparently did in the district court. See 685 F.Supp. at 887. Nevertheless, we note that the district court properly rejected the prejudicial \"spillover\" argument framed in those terms." }, { "docid": "10909994", "title": "", "text": "United States v. Teitler, 802 F.2d 606, 617 (2d Cir.1986). Because we find that the jury’s consideration of the Travel Act and extortion charges was not tainted by the presence in his trial of the “intangible rights” theory we have recently, in a similar context, termed “hardly ‘inflammatory,’ ” see Friedman, 854 F.2d at 582, we reject Brennan’s challenge to these convictions. CONCLUSION We uphold the validity of Brennan’s RICO and RICO conspiracy convictions because their validity is unaffected by the vacatur of his wire fraud convictions. Brennan’s challenges to these two convictions based on the statute of limitations and the statutory meaning of “enterprise” have been procedurally forfeited and cannot be raised here. With respect to his Travel Act and extortion convictions, Brennan was in no way unfairly prejudiced by the presence in the trial of the wire fraud charges, and we refuse to disturb those convictions. We affirm the judgment of the district court denying Brennan further relief. . Because we find neither of Brennan’s two arguments to be constitutional or jurisdictional, see infra, we have no occasion to examine whether the deliberate bypass test of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), remains the proper standard for the procedural foreclosure of constitutional or jurisdictional issues not raised on direct appeal by federal prisoners. See Norris v. United States, 687 F.2d 899, 902-04 (7th Cir.1982) (finding deliberate bypass test replaced by cause and prejudice test). . In light of the obvious risk of confusion, we note that this Davis case is unrelated to Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), cited supra and infra. . Because we find Brennan’s argument procedurally foreclosed, we do not examine another barrier that could preclude collateral relief, whether the claim would fall within the narrow realm of nonconstitutional or nonjurisdictional claims cognizable under section 2255. See Wright v. United States, 732 F.2d 1048, 1056-57 (2d Cir.1984), cert. denied, 469 U.S. 1106, 105 S.Ct. 779, 83 L.Ed.2d 774 (1985); Fiumara v. United States, 727 F.2d 209, 213 (2d Cir.), cert." }, { "docid": "13019919", "title": "", "text": "the denial of § 2255 relief. We turn first to an examination of the effects of Pacelli’s failure to raise the “spillover” double jeopardy claims on direct review in terms of waiving those claims. Until recently, it appeared clear that a waiver of a constitutional right had to be “knowing,” “intelligent,” or “an intentional relinquishment or abandonment of a known right or privilege,” Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In keeping with this “high waiver standard” which' refused to infer a waiver of constitutional rights without a strong showing of such a deliberate waiver, constitutional claims were cognizable in motions under 28 U.S.C. § 2255, often even when the claims were being raised for the first time in these § 2255 motions. Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969); United States v. Loschiavo, 531 F.2d 659, 662-63 (2d Cir. 1976); Randall v. United States, 454 F.2d 1132 (5th Cir.), cert. denied, 409 U.S. 862, 93 S.Ct. 151, 34 L.Ed.2d 109 (1972). Thus, constitutional claims were deemed waived Only on a showing of “deliberate by-pass” of regular appellate channels. United States v. West, 494 F.2d 1314 (2d Cir.), cert. denied, 419 U.S. 899, 95 S.Ct. 180, 42 L.Ed.2d 144 (1974). On the other hand, a claim which was non-constitutional generally could not be raised on collateral review unless it alleged a “fundamental defect” resulting in “a com píete miscarriage of justice,” Davis v. United States, 417 U.S. 333, 345-46, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974); Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), particularly where such an issue was not raised on direct appeal. Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); United States v. Wright, 524 F.2d 1100 (2d Cir. 1975). In recent years, the Supreme Court has seen fit to narrow the grounds on which motions for collateral relief from criminal convictions can be granted" }, { "docid": "10909991", "title": "", "text": "was convicted for “an act that the law does not make criminal.” See Davis, 417 U.S. at 346, 94 S.Ct. at 2305. Such a characterization might suggest turning for guidance to cases where a change in the law subsequent to the petitioner’s direct appeal creates “exceptional circumstances” making procedural foreclosure of a petitioner’s nonconstitutional claim inappropriate. See id.; see also Sunal, 332 U.S. at 180, 67 S.Ct. at 1591 (quoting Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455 (1939)); Loschiavo, 531 F.2d at 663; United States v. Coke, 404 F.2d 836, 846-47 (2d Cir.1968) (in banc). Recognizing the seriousness of such a situation, we have on occasion used “due process” language. See Loschiavo, 531 F.2d at 666; cf. United States v. Liguori, 438 F.2d 663, 669 (2d Cir.1971) (assessing effect on conviction of subsequent constitutional decision). Nevertheless, we believe that where such cases concern the interpretation of a statute, they can be collaterally reviewed under the discretionary exception to the general rule that non-constitutional and nonjurisdictional claims are forfeited if not raised on direct appeal, and not because they are constitutional claims. Moreover, in making his enterprise argument, Brennan points to no change in the law subsequent to his direct appeal. Thus, we reject any “endeavor ... to magnify [Brennan’s enterprise argument] to constitutional proportions.” See Sunal, 332 U.S. at 182, 67 S.Ct. at 1592. We find no “exceptional circumstances” warranting review of Brennan’s nonconstitutional and nonjurisdictional enterprise argument. The relevant law was well established at the time of his direct appeal, see United States v. Bagaric, 706 F.2d 42, 55-57 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 134, 78 L.Ed.2d 128 (1983); 1vic, 700 F.2d at 64-65; United States v. Angelilli, 660 F.2d 23, 30-35 (2d Cir.1981), cert. denied, 455 U.S. 910, 102 5.Ct. 1258, 71 L.Ed.2d 449 and 455 U.S. 945, 102 S.Ct. 1442, 71 L.Ed.2d 657 (1982), and there has been no subsequent change of consequence. Therefore, we conclude that Brennan procedurally forfeited his enterprise argument when he failed to raise it on direct review. B. The Travel Act" }, { "docid": "10909989", "title": "", "text": "apply to all nonconstitutional and nonjurisdictional arguments would seemingly constitute an expansion of the availability of collateral review. This would be an anomalous result because Fra-dy and the Supreme Court’s other cause and prejudice decisions were surely not intended to expand the availability of collateral review to those who have failed to raise claims at the first opportunity to do so. See Frady, 456 U.S. at 178, 102 S.Ct. at 1599 (Brennan, J, dissenting) (criticizing the majority’s “further step down this unfortunate path” of “progressive emasculation of collateral review of criminal convictions”); see also Sanchez v. Miller, 792 F.2d 694, 698 (7th Cir.1986) (“underlying policy” of cause and prejudice test is to require prisoners to present claims first to “the forum initially available, primarily because of the costs associated with granting a writ of habeas corpus”), cert. denied, 479 U.S. 1056, 107 S.Ct. 933, 93 L.Ed.2d 984 (1987). We therefore choose to adhere to the traditional rule that nonconstitutional and nonjurisdictional claims are generally procedurally foreclosed to a section 2255 petitioner if not raised on direct appeal. We believe that Brennan’s enterprise argument is neither constitutional nor jurisdictional in nature. Brennan’s claim amounts to the contention that he was convicted under an erroneous interpretation of a statutory term. As Judge Friendly said in United States v. Travers: [W]e must take Sunal as meaning that when the error is one which can be rectified by proper construction of a criminal statute without resort to the Constitution, a claim that a conviction was had without proof of all the elements required by the statute is not a constitutional claim as that phrase is used in respect of collateral attack. 514 F.2d 1171, 1177 (2d Cir.1974) (relying also on Davis, 417 U.S. at 345, 94 S.Ct. at 2304); see also Sunal, 332 U.S. at 182-83, 67 S.Ct. at 1592-93; United States v. Angelos, 763 F.2d 859, 861 (7th Cir.1985) (assessing collateral reviewability of “issues of a nonconstitutional, nonjurisdictional character” where petitioner’s claim was that the conduct for which he was convicted was not a crime). Brennan’s enterprise argument appears to be that he" }, { "docid": "12815231", "title": "", "text": "is precluded from raising it now in a collateral attack. As a general proposition, of course, claims based upon constitutional errors or on a lack of jurisdiction, in the broad sense of the court’s power to adjudicate the is sues, are not barred from being raised on collateral attack even though no direct appeal had been taken, Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947); Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455 (1939); while a non-constitutional claim which is not raised on direct appeal may properly be rejected as grounds for § 2255 relief. Davis v. United States, supra, 417 U.S. at 345-46, 94 S.Ct. at 2304, 41 L.Ed.2d at 118; Kaufman v. United States, 394 U.S. 217, 227 n. 8, 89 S.Ct. 1068, 1074, 22 L.Ed.2d 227, 237 (1969); United States v. Wright, 524 F.2d 1100, 1102 (2 Cir. 1975); United States v. West, 494 F.2d 1314 (2 Cir.), cert. denied, 419 U.S. 899, 95 S.Ct. 180, 42 L.Ed.2d 144 (1974); United States v. Coke, 404 F.2d 836, 846-47 (2 Cir. 1968). That the general rule is not absolute is indicated by what the Supreme Court said in Sunal v. Large, supra. “The rule which requires resort to appellate procedure for the correction of errors ‘is not one defining power but one which relates to the appropriate exercise of power.’ That rule is, therefore, ‘not so inflexible that it may not yield to exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’ ” 332 U.S. at 180, 67 S.Ct. at 1591, 91 L.Ed. at 1988. The latest cases which discuss the general rule and variations on its use are Davis v. United States, supra, and, in this Circuit, United States v. Travers, supra, in which Judge Friendly, writing for the court, made a careful and thorough analysis of its application. In the present case Loschiavo, following his conviction and sentence, took an appeal; but he did not squarely raise the issue of the Government’s failure to prove the essential element that" }, { "docid": "18596277", "title": "", "text": "take advantage of the several-day period required for the transmittal, processing, and payment of checks from accounts in different banks_” Williams, 458 U.S. at 281 n. 1, 102 S.Ct. at 3089 n. 1 (quoting Brief for United States at 12-13). . The Court cited Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), and Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), for the proposition that a change in the law can serve as the basis for a section 2255 motion. In his dissent, Justice Rehnquist distinguished the cases from the situation in Davis. See Davis, 417 U.S. at 362 & n. 18, 94 S.Ct. at 2312 & n. 18 (Rehnquist, J., dissenting) (observing that Sanders concerned the question whether a hearing is required on a claim admittedly cognizable under section 2255 and that Kaufman involved a constitutional ground for the section 2255 motion). The majority in Davis, moreover, distinguished two cases in which collateral relief had been denied. It stated that Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), stands “merely\" as “an example of 'the general rule ... that the writ of habeas corpus will not be allowed to do service for an appeal.’ ” Davis, 417 U.S. at 345, 94 S.Ct. at 2304 (quoting Sunal, 332 U.S. at 178, 67 S.Ct. at 1590). The Court distinguished Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), as a case indicating that collateral relief is unavailable if the only ground for the relief is the failure to follow formal procedural requirements that do not cause prejudice to the defendant. Davis, 417 U.S. at 346, 94 S.Ct. at 2305. Justice Rehnquist criticized these distinctions as being overly narrow. See Davis, 417 U.S. at 362-63, 94 S.Ct. at 2312-13 (REHNQUIST, J., dissenting). . Although Justice Rehnquist’s dissent also does not mention this line of cases, his reasoning supports the result in Meyers. He cogently argues that allowing nonconstitutional claims to be the basis of section 2255 motions upsets the orderly" }, { "docid": "13475232", "title": "", "text": "maintains that under United States v. Frady, 456 U.S. 152, 167, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982), the Spawrs must show “cause” to excuse their procedural default, and “actual prejudice” from the alleged trial errors. The government claims that the Spawrs have done neither. In Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), the Supreme Court capsulated the law concerning the availability of habeas relief in the face of such procedural defaults. The Court first stated the general rule that “the writ of habeas corpus will not be allowed to do service for an appeal.” Id. at 178, 67 S.Ct. at 1590. The Court then acknowledged an exception for errors of constitutional magnitude as opposed to mere errors of law and procedure. Id. at 178-79, 67 S.Ct. at 1590-91. However, the Court limited this “constitutional” exception to exceptional circumstances for which no reasonable alternative to habeas existed for their correction. Id. at 179-80, 183-84, 67 S.Ct. at 1591-92, 1593-94. Years after § 2255 was enacted, the Court decided Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969). In Kaufman, the Court generally reaffirmed the principles set out in Sunal. But it stated that constitutional claims should not be denied solely because they should have been raised on appeal. Id. at 223-24, 89 S.Ct. at 1072-73. Whereas the Court imposed no requirement on petitioners to show cause and prejudice, it implied that constitutional claims should not be decided when direct appeal procedures were deliberately bypassed. Id. at 220 n. 3, 89 S.Ct. at 1070 n. 3. In Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), the Court once again affirmed the foregoing principles with one exception. It distinguished Kaufman and carved out a class of constitutional claims that would not be so readily decided initially on a § 2255 motion. These claims are those that run afoul of express waiver provisions such as Fed.R. of Crim.P. 12(b)(2) (objections to indictment waived unless raised by motion before trial). The Davis court restricted the judicial" }, { "docid": "9811492", "title": "", "text": "28 U.S.C. § 2254(d), Congress has been silent on most procedural questions. See John C. Jeffries, Jr. & William J. Stuntz, Ineffective Assistance and Procedural Default in Federal Habeas Corpus, 57 U.Chi.L.Rev. 679, 707-09 (1990). Chapman was a direct appeal, as are most of the other cases in which the Supreme Court applied the “reasonable doubt” standard to state convictions. That the standard of harmless error may vary between direct and collateral appeal is a commonplace. For example, a violation of Fed.R.Crim.P. 11, which establishes procedures for taking guilty pleas, is enforceable on direct appeal by almost automatic reversal. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). On collateral attack, however, Rule 11 is enforceable only to the extent that the disregard of its provisions makes the proceedings fundamentally unfair. United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). The difference is not attributable to the nonconstitutional status of Rule 11, for the Rule is a “law,” and the pertinent statute, 28 U.S.C. § 2255, allows collateral attack on the ground that a person is in custody “in violation of the Constitution or laws of the United States”. See Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). The change in the.standard of review instead rests on the conclusion that one round of review is sufficient unless something has gone very wrong indeed. Collateral review is not supposed to be a replay of the direct appeal, Sunal v. Large, 332 U.S. 174, 181-82, 67 S.Ct. 1588, 1592-93, 91 L.Ed. 1982 (1947), a point emphasized when the Court held in United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), that blunders that could support reversal as “plain error” on direct appeal do not support collateral relief. The same may be said for review of state convictions. See Henderson v. Kibbe, 431 U.S. 145, 154 & n. 13, 97 S.Ct. 1730, 1737 & n. 13, 52 L.Ed.2d 203 (1977), which holds that only in the rarest of cases will an instruction" }, { "docid": "4325416", "title": "", "text": "subject to prosecution rebuttal to negative prejudice in fact. As to the content of the effect that defendant must show is likely, whether it be characterized as “blott[ing] out the essence of a substantial defense” or “deprivation of an otherwise available, substantial defense” is a matter of form more than substance. . Mitchell v. United States, supra, 104 U.S.App.D.C. at 65, 259 F.2d at 795 (Fahy, J., dissenting). . 28 U.S.C. § 2106 (1976); see Scott v. United States, supra, 138 U.S.App.D.C. at 340, 427 F.2d at 610. . Dyer v. United States, 126 U.S.App.D.C. 312, 379 F.2d 89 (1967). . 126 U.S.App.D.C. at 340, 379 F.2d at 117. . See, e. g., McNabb v. United States, 318 U.S. 332, 340-41, 63 S.Ct. 608, 87 L.Ed. 819 (1947). . See Boyd v. Henderson, 555 F.2d 56, 62 n.8 (2d Cir. 1977). . United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979) (formal violation of Fed.R.Crim.P. 11 provides no basis for collateral attack of conviction based on guilty plea); Davis v. United States, 417 U.S. 333, 345-46 & n.15, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (intervening change in law of circuit at as what constitutes a lawful draft induction order is cognizable under 28 U.S.C. § 2255; conviction for an act the law does not make criminal presents one of the “exceptional circumstances” that “inherently results in a complete miscarriage of justice”); Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962) (failure to permit allocution at sentencing not a “fundamental defect”); see Stone v. Powell, 428 U.S. 465, 477 n.10, 96 S.Ct. 3037, 3044, 49 L.Ed.2d 1067 (1976) (reiterating the “established rule” that “non-constitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings”); Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947) (collateral attack may not “do service for an appeal”). . 428 U.S. 465, 491 n.31, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); see also United States v. Timmreck, 441 U.S. 780," }, { "docid": "10909990", "title": "", "text": "direct appeal. We believe that Brennan’s enterprise argument is neither constitutional nor jurisdictional in nature. Brennan’s claim amounts to the contention that he was convicted under an erroneous interpretation of a statutory term. As Judge Friendly said in United States v. Travers: [W]e must take Sunal as meaning that when the error is one which can be rectified by proper construction of a criminal statute without resort to the Constitution, a claim that a conviction was had without proof of all the elements required by the statute is not a constitutional claim as that phrase is used in respect of collateral attack. 514 F.2d 1171, 1177 (2d Cir.1974) (relying also on Davis, 417 U.S. at 345, 94 S.Ct. at 2304); see also Sunal, 332 U.S. at 182-83, 67 S.Ct. at 1592-93; United States v. Angelos, 763 F.2d 859, 861 (7th Cir.1985) (assessing collateral reviewability of “issues of a nonconstitutional, nonjurisdictional character” where petitioner’s claim was that the conduct for which he was convicted was not a crime). Brennan’s enterprise argument appears to be that he was convicted for “an act that the law does not make criminal.” See Davis, 417 U.S. at 346, 94 S.Ct. at 2305. Such a characterization might suggest turning for guidance to cases where a change in the law subsequent to the petitioner’s direct appeal creates “exceptional circumstances” making procedural foreclosure of a petitioner’s nonconstitutional claim inappropriate. See id.; see also Sunal, 332 U.S. at 180, 67 S.Ct. at 1591 (quoting Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455 (1939)); Loschiavo, 531 F.2d at 663; United States v. Coke, 404 F.2d 836, 846-47 (2d Cir.1968) (in banc). Recognizing the seriousness of such a situation, we have on occasion used “due process” language. See Loschiavo, 531 F.2d at 666; cf. United States v. Liguori, 438 F.2d 663, 669 (2d Cir.1971) (assessing effect on conviction of subsequent constitutional decision). Nevertheless, we believe that where such cases concern the interpretation of a statute, they can be collaterally reviewed under the discretionary exception to the general rule that non-constitutional and nonjurisdictional claims are forfeited" }, { "docid": "23183771", "title": "", "text": "The error must “present exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” Id. (quoting Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455 (1939)); see Fasano v. Hall, 615 F.2d 555, 557 (1st. Cir.), cert. denied, 449 U.S. 867, 101 S.Ct. 201, 66 L.Ed.2d 86 (1980). Errors warranting a reversal'on direct appeal will not necessarily support a collateral attack. See United States v. Addonizio, 442 U.S. 178, 184-85, 99 S.Ct. 2235, 2239-40, 60 L.Ed.2d 805 (1979). The reason for so sharply limiting the availability of collateral attack for nonconstitutional, nonjurisdietional errors is that direct appeal provides criminal defendants with a regular and orderly avenue for correcting such errors. The Supreme Court has repeatedly emphasized that § 2255 is not a substitute for direct appeal. See, e.g., United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982); Addonizio, 442 U.S. at 184-85, 99 S.Ct. at 2239-40; Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590-91, 92 L.Ed. 1982 (1947). A non-constitutional claim that could have been, but was not, raised on appeal, may not be asserted by collateral attack under § 2255 absent exceptional circumstances. See Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 3044 n. 10, 49 L.Ed.2d 1067 (1976); Suveges v. United States, 7 F.3d 6, 10 (1st Cir.1993) (applying cause and prejudice standard to procedural default of jurisdictional claim). The Supreme Court has on four occasions considered whether a particular nonconstitu-tional, nonjurisdictional claim was properly brought under § 2255. See Hill, 368 U.S. at 428, 82 S.Ct. at 471 (denial of allocution' at sentencing in violation of Fed.R.Crim.P. 32(a) is not a “miscarriage of justice”); United States v. Timmreck, 441 U.S. 780, 784-85, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979) (error under Fed.R.Crim.P. 11 in procedure for taking a guilty plea not a “miscarriage, of justice”); Addonizio, 442 U.S. at 184-90, 99 S.Ct. at 224CM1 (subsequent change in U.S. Parole Commission’s parole policies not sufficient to constitute basis for collateral attack)." }, { "docid": "8584612", "title": "", "text": "by the violation. But we need not pose the question as a choice between nonenforcement and full enforcement (meaning application of the Chapman standard). There is a middle ground. Some rights are enforceable on collateral attack, but only if the violation and injury are especially severe. For example, a violation of Fed.R.Crim.P. 11, which establishes procedures for taking guilty pleas, is enforceable on direct appeal by almost automatic reversal. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). On collateral attack, however, Rule 11 is enforceable only to the extent that the disregard of its provisions makes the proceedings fundamentally unfair. United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). The difference is not attributable to the nonconstitutional status of Rule 11, for the Rule is a “law,” and the pertinent statute, 28 U.S.C. § 2255, allows collateral attack on the ground that a person is in custody “in violation of the Constitution or laws of the United States”. See Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). The change in the standard of review instead rests on the conclusion that for Rule 11, as for many other things, one round of review is sufficient unless something has gone very wrong indeed. See Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962); Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947). The same may be said for review of state convictions. See Henderson v. Kibbe, 431 U.S. 145, 154 & n.13, 97 S.Ct. 1730, 1737 & n. 13, 52 L.Ed.2d 203 (1977), which holds that only in the rarest of cases will an instruction to which no objection was made at trial support collateral attack, even though the same instruction might have been “plain error” on direct appeal. All of these distinctions implement the principle that more enforcement of constitutional rights is not always required. If Doyle errors may be raised on collateral attack at all, “enough” enforcement will be achieved by application" }, { "docid": "18596278", "title": "", "text": "Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), stands “merely\" as “an example of 'the general rule ... that the writ of habeas corpus will not be allowed to do service for an appeal.’ ” Davis, 417 U.S. at 345, 94 S.Ct. at 2304 (quoting Sunal, 332 U.S. at 178, 67 S.Ct. at 1590). The Court distinguished Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), as a case indicating that collateral relief is unavailable if the only ground for the relief is the failure to follow formal procedural requirements that do not cause prejudice to the defendant. Davis, 417 U.S. at 346, 94 S.Ct. at 2305. Justice Rehnquist criticized these distinctions as being overly narrow. See Davis, 417 U.S. at 362-63, 94 S.Ct. at 2312-13 (REHNQUIST, J., dissenting). . Although Justice Rehnquist’s dissent also does not mention this line of cases, his reasoning supports the result in Meyers. He cogently argues that allowing nonconstitutional claims to be the basis of section 2255 motions upsets the orderly administration of justice. See Davis, 417 U.S. at 350-68, 94 S.Ct. at 2307-15 (Rehnquist, J., dissenting). Nevertheless, Justice Rehnquist is the only member of the Court to have dissented on this basis. . Given this conclusion, we also must assume that Bonnette has met the \"miscarriage of justice”/\"exceptional circumstances” standard necessary to justify a section 2255 motion based on nonconstitutional grounds. See Davis, 417 U.S. at 346, 94 S.Ct. at 2305 (\"If this contention [that the change in law invalidates the conviction under old law] is well taken, then Davis' conviction and punishment are for an act that the law does not make criminal.”). . The Court further observed that, \"[u]nder the Court of Appeals’ approach, the violation of § 1014 is not the scheme to pass a number of bad checks, it is the presentation of one false statement — that is, one check that at the moment of deposit is not supported by sufficient funds — to a federally insured bank.” Williams, 458 U.S. at 286, 102 S.Ct. at 3092. . Furthermore, the" }, { "docid": "10909977", "title": "", "text": "See Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 3044 n. 10, 49 L.Ed.2d 1067 (1976); Davis v. United States, 417 U.S. 333, 345 n. 15, 94 S.Ct. 2298, 2305 n. 15, 41 L.Ed.2d 109 (1974); Kaufman v. United States, 394 U.S. 217, 220 n. 3, 89 S.Ct. 1068, 1070 n. 3, 22 L.Ed.2d 227 (1969); Sunal v. Large, 332 U.S. 174, 178-79, 67 S.Ct. 1588, 1590-91, 91 L.Ed. 1982 (1947); Pacelli v. United States, 588 F.2d 360, 363 (2d Cir.1978), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979). Nevertheless, in “ ‘exceptional circumstances,’ ” even a nonconstitutional or nonjurisdictional error can result in a “ ‘complete miscarriage of justice’ ” justifying collateral relief. Davis, 417 U.S. at 346-47, 94 S.Ct. at 2305 (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)). In such circumstances, as, for example, where a subsequent change in the law has resulted in a petitioner’s “conviction and punishment [having been imposed] for an act that the law does not make criminal,” id. at 346, we have refused to apply the general rule denying relief because of a procedural default. See, e.g., Ingber, 841 F.2d at 454; United States v. Loschiavo, 531 F.2d 659, 663-67 (2d Cir.1976). With respect to constitutional or jurisdictional claims, we have adhered to the rule that a section 2255 petitioner may raise such claims even though they were not raised on direct appeal, unless there is some showing of deliberate delay or bypass. See Pacelli, 588 F.2d at 363-65; see also Grimes v. United States, 607 F.2d 6, 10 (2d Cir.1979). In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Supreme Court held that a state prisoner who had failed to comply at trial with the state’s contemporaneous objection rule would have to satisfy the “cause and prejudice” test in order to obtain federal collateral review of the defaulted constitutional claim. While broadening the application of a test that had been articulated in Davis v. United States, 411 U.S." }, { "docid": "8835405", "title": "", "text": "(1974); Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969). However, non-constitutional issues are proper for collateral attack only when some type of extraordinary discrepancy is alleged. In Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), the Supreme Court stated in reference to the failure of the trial court to ask a defendant if he had anything to say before sentencing: It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. It does not present “exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455. 368 U.S. at 428, 82 S.Ct. at 471. Thus, it has developed that non-constitutional claims are not proper for collateral review unless a “fundamental defect” is asserted which would lead to a “complete miscarriage of justice”. The Supreme Court has re-enunciated this rule on several occasions. Most recently, in Stone v. Powell, 428 U.S. 465, at 477 n.10, 96 S.Ct. 3037, at 3043, 49 L.Ed.2d 1067 (1976), the Court observed that, “Despite the expansion of the scope of the writ, there has been no change in the established rule with respect to non-constitutional claims.” See also Davis v. United States, 417 U.S. 333, at 345, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974); Sunal v. Large, 332 U.S. 174, at 178, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947). Here, the statutory issue of notice does not present the “exceptional circumstances” constituting the type of fundamental defect contemplated in Hill. While Marshall’s § 2255 motion was pro se, he was represented by counsel on his prior direct appeal to this court. Thus, no allegation can be made that the equities of this case require us to now hear this issue by way of § 2255. Further, notice was provided by the government in this case and it was sufficient" } ]

[ { "docid": "9482247", "title": "", "text": "an additional penalty of $500 on retail dealers and $1,000 on manufacturers. The payment of such tax or penalty shall give no right to engage in the manufacture or sale of such liquor, or relieve anyone from criminal liability, nor shall this Act relieve any person from any liability, civil or criminal, heretofore or hereafter incurred under existing laws. <, , ' “The commissioner, with the approval of the Secretary of the Treasury, may compromise any civil cause arising under this title before- bringing action in court; and with the approval of the Attorney General he may compromise any such cause after action thereon has been commenced.” • The defendant claims that all of these items are taxes, are collectible as such, by proceedings under warrant'for distraint, and are taxes within the meaning of that term as used in section 3224, R. S. The plaintiffs claim that all of the items or elements are in fact penalties, though some of them are called taxes, that none of them are collectible by proceedings under a warrant for distraint, and they are not taxes within the purview of section 3224, R. S. A tax has been defined as: “Ail enforced contribution for tlie payment of public expenses.” Houck v. Little River Drainage District, 239 U. S. 254, 265, 36 Sup. Ct. 58, 61 (60 L. Ed. 268). And again: “Generally speaking, a tax is a pecuniary burden laid upon individuals or property for the puroose of supporting tlie government.\" New Jersey v. Anderson, 203 U. S. 483, 492, 27 Sup. Ct. 137, 140 (51 L. Ed. 284). A penalty involves the idea of punishment. U. S. v. Reisinger, 128 U. S. 398, 402, 9 Sup. Ct. 99, 32 L. Ed. 480; Huntington v. Attrill, 146 U. S. 657, 667, 13 Sup. Ct. 224, 36 L. Ed. 1123. And its character is not changed by the mode in which it is inflicted, whether by suit or criminal prosecution. U. S. v. Chouteau, 102 U. S. 603, 611, 26 L. L. Ed. 246. In view of the foregoing tests, and from a careful reading" } ]

[ { "docid": "13270082", "title": "", "text": "and the subject matter, and concluding that the law was with the defendants and against the plaintiff. By note to counsel, the referee called attention to the case of Botta v. Scanlon, 2 Cir., 1961, 288 F.2d 504. Plaintiff has petitioned for review of the order of dismissal. The defendants rely on 26 U.S.C. § 7421, which provides that except as provided in sections 6212(a) and (c), and' 6213(a), which are not pertinent here, no suit for the purpose of restraining the' assessment or collection of any tax shall be maintained in any court. This section has been applied to penalties assessed in conjunction with taxes. Reams, v. Vrooman-Fehn Printing Co., 6 Cir., 1944, 140 F.2d 237; Rosner v. McGinnes, D.C.E.D.Pa.1958, 167 F.Supp. 44. The Supreme Court recognized an exception to the statute in Miller v. Standard Nut Margarine Co., 1932, 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422. The court held that “in cases where complainant shows that in addition to the illegality of an exaction in the guise of a. tax there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collector.” 284 U.S. at page 509, 52 S.Ct. at page 263. The defendants contend that plaintiff has not sufficiently alleged either condition of the exception; that the assessment of the penalties was admittedly legal and penalties are not provable in bankruptcy and thus not subject to discharge; and that inability to pay is not an extraordinary circumstance to invoke equitable powers. The defendants also cite and rely on Section 57, sub. j of the Bankruptcy Act (11 U.S.C.A. § 93, sub. j), which provides: “Debts owing to the United States or to any State or any subdivision thereof as a penalty or forfeiture shall not be allowed, except for the amount of the pecuniary loss sustained by the act, transaction, or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby and such interest as may have accrued on the amount of such loss" }, { "docid": "20543280", "title": "", "text": "established beyond dispute and that there are special and extraordinary circumstances which justify the injunction. For this purpose they rely on Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422, and the application of the doctrine of that case by this Court in Yoke v. Mazzello, 4 Cir., 202 F.2d 508, and Shelton v. Gill, 4 Cir., 202 F.2d 503. The nature of a case which would justify the court in issuing an injunction despite the prohibition of the statute is illustrated by the facts in Miller v. Standard Nut Margarine Co., where the Government attempted to collect a tax on a product under the Oleomargarine Tax Act although it had been previously determined by the courts and by the Commissioner of Internal Revenue himself that the act was inapplicable, and where the special and extraordinary circumstance was shown that the imposition of the tax with penalties would destroy the taxpayer's business. No such situation is found in the case at bar. The matter in dispute was whether certain automobile expenses and automobile rentals were personal to the taxpayers or were incurred in the operation of a corporate business which they controlled and were, therefore, deductible. The taxpayers allege in their bills of complaint that the expenses pertained to the business but this is merely their conclusion which is disputed by the Government and is not supported by any impartial determination. Obviously, the partisan opinion of the taxpayers does not establish the illegality of the tax for the purposes of in-junctive relief. Furthermore, the case is totally lacking in the “special and extraordinary circumstances sufficient to bring the case within some acknowledged heading of equity jurisprudence.\" (See Miller v. Standard Nut Margarine Co., 284 U.S. 509, 52 S.Ct. 263, 76 L.Ed. 422.) Not only was the illegality of the tax uncertain but the taxpayers had abundant means to test the validity of the assessment. They had an adequate remedy at law. They could have consented to the extension of the period of limitations and demonstrated their position in informal conferences with the tax authorities," }, { "docid": "15308597", "title": "", "text": "as a result of sales made by the trustees. So far as the testimony shows, the company paid nothing for the interest in the property at the time of its acquisition and has paid nothing since except interest amounting to approximately $175 and the $500 assessment. A number of other matters, such as the income tax returns of Hubbard and of the investment company, were covered by his testimony; but we deem them immaterial. So far as the interest 'of creditors is concerned, while Hubbard.testified that both he and the investment company had lost money and that neither was able to meet outstanding obligations, there is no evidence that upon a final adjustment of accounts and equities between Hubbard and the company, either the company or its creditors would be injured as a result of the sale of the property under the distraint warrant. No receiver for the company .has been appointed, and no creditor of the company has intervened or asked relief at the hands of the court. We think that the court below properly refused the injunction and dismissed the bill, not, however, because of the provisions of section 3224 of the Revised Statutes (26 USCA § 154). That section forbids the maintenance of a suit, the purpose of which is to restrain the “assessment or collection of any tax.” It has no application to a suit instituted, not to restrain the assessment or collection of a tax, but the sale of property which does not belong to the taxpayer and is not subject to distraint and sale for taxes assessed against him. Long v. Rasmussen (D. C.) 281 F. 236; Pool v. Walsh (C. C. A. 9th) 282 F. 620; Owensboro Ditcher & Grader Co. v. Lucas (D. C.) 18 F.(2d) 798; Trinacia Real Estate Co. v. Clarke (D. C.) 34 F. (2d) 325; Livingston v. Becker (D. C.) 40 F.(2d) 673. And see Miller v. Standard Nut Margarine Co. of Florida, 284 U. S. 498, 52 S. Ct. 260, 76 L. Ed.-. If therefore, this were a ease where property equitably belonging to one person were" }, { "docid": "20818354", "title": "", "text": "restrain the assessment or collection of the tax, nor to contest the merits of the assessment. He seeks to enjoin preliminarily the tax levy until a determination is made on his refund claim. The statute, however, makes no distinction between a temporary or permanent restraint, nor has the plaintiff cited or the court found any authority to support this contention. See, e. g., Wahler v. Church, E.D.N.Y. 1966, 260 F.Supp. 307; Cooper Agency v. McLeod, E.D.S.C.1965, 247 F.Supp. 57, in which actions for a temporary and preliminary injunction were dismissed. Plaintiff contends if Section 7421(a) is applicable, the circumstances here come within the exception to the statute set forth in Miller v. Nut Margarine Co., 1932, 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422, and Enochs v. Williams Packing and Navigation Co., Inc., 1962, 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292. In Miller, the Court found plaintiff’s product not to be within the Oleomargarine Tax Act, and therefore held the tax was clearly illegal. The Court laid down two criteria to enjoin a tax collection: “. . .in cases where complainant shows that in addition to the illegality of an exaction in the guise of a tax there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collector.” p. 509 of 284 U.S., p. 263 of 52 S.Ct. In Enochs, the Court elaborated on the criteria established in Miller: “The manifest purpose of § 7421(a) is to permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund. In this manner the United States is assured of prompt collection of its lawful revenue. Nevertheless, if it is clear that under no circumstances could the Government ultimately prevail, the central purpose of the Act is inapplicable and, under the Nut Margarine case, the attempted collection may be enjoined if equity jurisdiction otherwise exists. In such a situation the exaction" }, { "docid": "13276209", "title": "", "text": "960. Tax liability. Any officers and agents conducting any business under authority of a United States court shall be subject to all Federal, State and local taxes applicable to such business to the same extent as if it were conducted by an individual or corporation.”, From the above language, it is clear that the Trustee of the debtor corporations is on the same footing with any other taxpayer. As a practical matter, there would seem to be no reason why the law should be otherwise. A solvent corporation engaged in a reorganization may have an equally large amount of tax liability, contingent upqn the outcome of litigation subsequent to the occurrence of a potentially taxable! event. There is no reason why an insolvent corporation should be in a preferred position. The possible loss of a favorable business transaction is insufficient reason of itself to create the extraordinary circumstances necessary for the injunctive relief sought by appellant. The Internal Revenue Code of 1954, section 7421, states the general rule: “(a) Tax. * * * no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” This restraint against injunc-tive action is not absolute. The Supreme Court has recognized this modification : “ * * * in cases where complainant shows that in addition to the illegality of an exaction in the guise of a tax there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collector.” Miller v. Standard Nut Margarine Co., 284 U.S. 498, 509, 52 S.Ct. 260, 263, 76 L.Ed. 422. This court has held that any exception to the universality of the application of section 7421 of the Internal Revenue Code must turn upon “present extraordinary and entirely exceptional circumstances.” John M. Hirst & Co. v. Gentsch, 6 Gir., 1943, 133 F.2d 247, 248. We stated there that the “circumstances that are to be considered extraordinary or exceptional have never, of course, been catalogued.” In my judgment, departure from the clear statutory prohibition" }, { "docid": "2312433", "title": "", "text": "Revised Statutes (U.S.C., Title 31, ,§ 192) in respect of any such tax.” We think that this holding should not be sustained since the circumstances clearly bring the cases within the rule established by the Supreme Court in Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422, and by subsequent decisions that Sec. 3653 is general in its terms and should not be construed as abrogating the equitable principles which permit suits to restrain collection where the exaction is illegal and there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisdiction. It may be noted, at the outset, that the broad prohibition of Sec, 3653(a) against the maintenance of any suit to restrain the collection of any taxes is directed at the person liable for the taxes and is not intended to preclude the courts from affording protection to one not liable to the taxes whose property may be in danger of seizure and sale by the taxing authorities. See Tower Production Co. v. Jones, D.C.Okl., 45 F.Supp. 593; Id., 10 Cir., 138 F.2d 675; Tower Production Co. v. U. S., 61 F.Supp. 411; Id., 3 Cir., 153 F.2d 304; National Iron Bank v. Manning, D.C., 76 F.Supp. 841; Adler v. Nicholas, 10 Cir., 166 F.2d 674; Hubbard Investment Co. v. Brast, 4 Cir., 59 F.2d 709. The right to proceed against a transferee of the taxpayer ■ conferred by Sec. 311, I.R.C., and the prohibition against suits to restrain the assessment or collection of the liability of the transferee set out in Sec. 3653(b) do not give the government any greater rights against the transferee or restrict the power of the courts, to any greater extent than would be the case if the taxpayer himself were involved. Indeed, in the pending cases, the government confronts the difficulty that the plaintiffs, by the admitted facts, are not transferees of the taxpayer within the meaning of the statute. It has been uniformly held by the Tax Court that the mere distribution of assets does not of itself" }, { "docid": "15308598", "title": "", "text": "properly refused the injunction and dismissed the bill, not, however, because of the provisions of section 3224 of the Revised Statutes (26 USCA § 154). That section forbids the maintenance of a suit, the purpose of which is to restrain the “assessment or collection of any tax.” It has no application to a suit instituted, not to restrain the assessment or collection of a tax, but the sale of property which does not belong to the taxpayer and is not subject to distraint and sale for taxes assessed against him. Long v. Rasmussen (D. C.) 281 F. 236; Pool v. Walsh (C. C. A. 9th) 282 F. 620; Owensboro Ditcher & Grader Co. v. Lucas (D. C.) 18 F.(2d) 798; Trinacia Real Estate Co. v. Clarke (D. C.) 34 F. (2d) 325; Livingston v. Becker (D. C.) 40 F.(2d) 673. And see Miller v. Standard Nut Margarine Co. of Florida, 284 U. S. 498, 52 S. Ct. 260, 76 L. Ed.-. If therefore, this were a ease where property equitably belonging to one person were being sold in satisfaction of taxes assessed against another, the statute relied upon would afford no reason for refusing relief. The ease presented, however, is not such a ease; for complainant has not satisfactorily established its ownership of the property. On the contrary, the record title is shown to be in Hubbard and there is certainly no sufficient proof to establish a resulting trust in favor of complainant, which must be established by proofs clear and convincing that the person claiming the equitable title actually paid the purchase price. See Straley v. Es- ser, 117 Va. 135, 83 S. E. 1075; Lench v. Lench, 10 Ves. 571. Here the allegation is merely that the investment company put up stock as collateral to the purchase money note; and Hubbard in his testimony does not recall whether it was he or the company that executed the note. If he made the purchase and assumed the obligation for the purchase money, it would not create an equitable estate in the company that it later paid installments of interest" }, { "docid": "13878068", "title": "", "text": "“ * * * no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court”. U.S.Code, Title 28, § 1341 provides that, “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” In spite of the' broad, sweeping language of these statutes, it had been uniformly held that they are but a restatement of the principle that equity will not interfere by injunction with the collection of taxes unless some special or extraordinary circumstance is present, justifying its interposition. In Miller v. Standard Nut Margarine Co., 284 U.S. 498, 509, 52 S.Ct. 260, 263, 76 L.Ed. 517, this doctrine was summarized as follows: “And this court likewise recognizes the rule that, in cases where complainant shows that in addition to the illegality of an exaction in the guise of a tax there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collector.” This rule has been generally recognized and applied by the Federal courts. Numerous exceptions to the comprehensive ban against injunctions to restrain the collection of taxes have been developed by judicial decisions. As a result these statutes may be said to be more honored in the breach than in the observance. Upon a showing of considerations that appeal to the discretion of a court of equity, a suit for an injunction may be entertained and a determination of the validity of the tax made in such summary and expeditious manner. One of the many exceptions to the prohibition comprizes cases in which it is sought to collect the tax from a person other than the original taxpayer, as for instance, a transferee of the taxpayer’s property, or a person who has assumed his liability. This case is within this exception. Accordingly, the Court is of the opinion that this action may be maintained and will proceed to" }, { "docid": "692136", "title": "", "text": "detail. Therefore, we here consider it necessary only to touch upon some of the more salient points. Title 26 U.S.C.A. § 6201 authorizes and requires the Secretary of the Treasury or his delegate to assess all taxes accruing under the Act. Title 26 U.S.C.A. § 6861, supplementing § 6201, reads in relevant part as follows: “(a) Authority for making. — If the Secretary or his delegate believes that the assessment or collection of a deficiency, as defined in section 6211, will be jeopardized by delay, he shall, notwithstanding the provisions of section 6213(a), immediately assess such deficiency (together with all interest, additional amounts, and additions to the tax provided for by law), and notice and demand shall be made by the Secretary or his delegate for the payment thereof.” Title 26 U.S.C.A. § 7421(a) reads thus: “Tax. — Except as provided in section 6212(a) and (c), and 6213(a), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” Neither section 6212(a) and (c), notice of deficiency and the restriction of further deficiency letters, nor 6213(a), petitions to the Tax Court, would in any manner include a jeopardy assessment under § 6861. Hence the sweeping prohibitions of § 7421(a) are applicable to the present case. However, we must recognize, as we did in the Homan case, that “prevailing case law has, on occasion, palliated the strictures Congress enacted in § 7421.” [242 F.2d 651.] What constitutes justification for such alleviation has been adequately set forth in Miller v. Standard Nut Margarine Co., 1932, 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422. There the Supreme Court said, 284 U.S. at page 509, 52 S.Ct. at page 263, “a suit will not lie to restrain the collection of a tax upon the sole ground of its illegality.” It then went on to say “where complainant shows that in addition to the illegality of an exaction in the guise of a tax there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence, a suit may" }, { "docid": "6788652", "title": "", "text": "284 U.S. 498, 509, 52 S.Ct. 260, 263, 76 L.Ed. 422. That Miller v. Standard Nut Margarine Company presented such an exceptional case as to amount to an abuse of jurisdiction by the tax officials is made ■apparent in the extended and able analysis of that case in Homan Mfg. Co. v. Long, 7 Cir., 1957, 242 F.2d 645, 651-653. In no other case has the Supreme Court permitted an injunction to restrain the assessment or collection of a tax. The cases are collected and discussed in 9 Mertens Law of Federal Income Taxation, Zimet Revision, Section 49.212, where it is stated: “With just one exception, those cases in which the Supreme Court has permitted injunctions restraining Government officials were all cases in which the Court held that the purported tax sought to be restrained was in reality not a tax but a penalty, and the Court said that the statutory prohibition did not apply to the collection of penalties. The decision in Miller v. Standard Nut Margarine Company is the only case in which the Supreme Court clearly held that although no penalty was involved, the circumstances were so special and extraordinary as to render inapplicable the statute prohibiting the maintenance of a suit to restrain the collection of taxes.” The rationale of Miller v. Standard Nut Margarine Company, supra, cannot be extended to bring within some supposedly implied exception cases like the present one without emasculating the prohibition contained in the statute. That much was recognized by Judge Sanborn, speaking for the Eighth Circuit, in a case which seems to me directly in conflict with the holding of the majority in the instant case: “It is true that where a complainant demonstrates that what purports to be a tax is merely an exaction in the guise of a tax and that there are special and extraordinary circumstances which bring the case under some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collection of the pseudo-tax. Miller v. Standard Nut Margarine Co., 284 U.S. 498, 509, 52 S.Ct. 260, 76 L.Ed. 422. The validity" }, { "docid": "4223525", "title": "", "text": "its decision has become final. The Act expressly provides that the Court may enjoin the collection of a tax pending such proceeding. Section 272(b) prohibits the Commissioner from assessing or collecting any part of a deficiency disallowed by final decision of the Tax Court. The taxes which the Commissioner is now attempting to collect were, in effect, disallowed .by the final decision of the Tax Court and come directly within the prohibitions of § 272(a) (1) and § 272(b) which authorize the Court to grant an injunction. In Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 263, 76 L.Ed. .422, the Supreme Court said: “* * * And this court likewise recognizes the rule that, in cases where complainant shows that in addition to the'illegality of an exaction in the guise of a tax there exists special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collector. * * *” See: Midwest Haulers, Inc. v. Brady, 6 Cir., 128 F.2d 496; Hirst & Co. v. Gentsch, 6 Cir., 133 F.2d 247. The rule in Ohio is that a judgment entered pursuant to a settlement agreement is res adjudieata. Eells v. Shea, 20 Ohio Cir.Ct.R. 527, affirmed 66 Ohio St. 683, 65 N.E. 1128. The enforcement of a judgment, which has been paid, may be enjoined. Betz v. Betz, 4 Ohio App. 264. It is claimed that the taxpayer has an adequate remedy at law by paying the tax and suing for a refund. He ought not be required to do this where a settlement agreement has been entered into in good faith which has been carried into effect by a decision of the Tax Court and fully executed by payment. The defendant had attached the taxpayer’s salary under the warrant of distraint and if he continued to work long enough he could ultimately pay the tax ■out of his earnings and then bring suit for a refund. See Deft’s Ex. No. 3, par. 4 for statement of assets. This Court will not" }, { "docid": "720857", "title": "", "text": "Court, relying upon Owensboro Co. v. Lucas, 18 F. (2d) 798, overruled a motion to dismiss, and, lacking further pleadings, granted the injunction. For the purpose of getting at once to what we think the controlling question, but without intimating opinion, we assume that, if section 280 (a) (1) is unconstitutional, the assessment against the stockholders is not such a tax, or fax proceeding, that an injunction is forbidden under Rev. St. § 3224 (section 154, tit. 26, USCA), or section 604, Revenue Act of 1928 (section 2604, tit. 26, US CA). In the same way, we assume that the question whether “any liability at law or in equity” to pay this deficiency exists against these stockholders is not one inherently incidental to the taxing power, but is a judicial question beyond the power of Congress to transfer to the administrative category — so that the power to decide it with the finality necessary to support a distraint as for taxes, could not be confided to the Commissioner or to the Board of Tax Appeals; and assume also that the remedy given by paying the tax and suing to recover may not be so “adequate” as to bar relief in equity. Upon the basis of these same assumptions, plaintifCs-appellees urge that the opportunity to be heard by the transferee ended with the Board of Tax Appeals, and that the absence of any further opportunity for hearing constitutes a laek of due process under the Fifth Amendment. We think this argument fails because, in our judgment, the transferee has the right to have the whole matter heard by the Circuit Court of Appeals in the exercise of its power to review (section 1001, Revenue Act of 1926, section 1224, title 26, USCA); and, where a statute expressly gives a right to judicial review of an administrative order before the order can be enforced, there is no room to invoke the “due process” clause. Ben Avon Case, 253 U. S. 287, 289, 40 S. Ct. 527, 64 L. Ed. 908; State of Missouri ex rel. Hurwitz v. North, 271 U. S. 40," }, { "docid": "13276210", "title": "", "text": "for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” This restraint against injunc-tive action is not absolute. The Supreme Court has recognized this modification : “ * * * in cases where complainant shows that in addition to the illegality of an exaction in the guise of a tax there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collector.” Miller v. Standard Nut Margarine Co., 284 U.S. 498, 509, 52 S.Ct. 260, 263, 76 L.Ed. 422. This court has held that any exception to the universality of the application of section 7421 of the Internal Revenue Code must turn upon “present extraordinary and entirely exceptional circumstances.” John M. Hirst & Co. v. Gentsch, 6 Gir., 1943, 133 F.2d 247, 248. We stated there that the “circumstances that are to be considered extraordinary or exceptional have never, of course, been catalogued.” In my judgment, departure from the clear statutory prohibition is not warranted in the present circumstances. Inasmuch as the United States District Court had no jurisdiction over the subject matter in the tax phase of this proceeding, it is unnecessary to consider whether there was personal jurisdiction over the several taxing authorities and whether the rulings of the Commissioner as to the effect of section 337 of the Internal Revenue Code are correct. I am in accord with the conclusion of Judge MILLER, for the reasons stated by him, that post-bankruptcy interest should not be allowed to the public holders of the bonds and debentures of Kentucky Fuel Gas Corporation. The order of the United States District Judge dismissing the Trustee’s petition for adjudication of the tax liability for lack of jurisdiction should, in my judgment, be affirmed." }, { "docid": "3482811", "title": "", "text": "United States of America as a party defendant is granted. Defendants’ motion to dismiss the complaint is granted. . Plaintiff's motion to add the United States as a party defendant under F.R.Civ.P. rule 21 will be granted. . Thompson v. Commissioner, 21 CCH Tax Ct. Mem. 1066 (1962). . De Masters v. Arend, 313 F.2d 79, 84 (9th Cir. 1963); United States v. Coson, 286 F.2d 453, 456 (9th Cir. 1961); First National Bank of Emlenton, Pa. v. United States, 265 F.2d 297, 299 (3d Cir. 1959). . See, e. g., State Railroad Tax Cases, 92 U.S. 575, 613-614, 23 L.Ed. 663 (1875); Cheatbam v. United States, 92 U.S. 85, 88, 23 L.Ed. 561 (1875). . In the landmark case of Miller v. Standard Nut Margarine Co., 284 U.S. 498, 509, 52 S.Ct. 260, 263, 76 L.Ed. 422 (1932), the Supreme Court held that in enacting the common law rule that courts of equity will not restrain the collection of a tax upon the sole ground of its illegality, Congress did not intend to abrogate the “salutary and well established rule” that “in cases where complainant shows that in addition to the illegality of an exaction in the guise of a tax there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collector.” Since that decision, courts have rigidly adhered to the two requirements that there be an “exaction in the guise of a tax” and “special and extraordinary circumstances” before injunctive relief will be afforded. See, e. g., Melvin Building Corp. v. Long, 262 F.2d 920 (7th Cir. 1958), holding that it was error to grant an injunction where the allegation was not that the tax was illegal, but that the tax assessed was not due. Recently, in Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962), the Court held that a complaint for injunctive relief must be dismissed for want of jurisdiction unless “it is clear that under no circumstances could the" }, { "docid": "23458766", "title": "", "text": "manufacture and sell would not be taxable as oleomargarine, and, upon receipt of [Commissioner’s] letter, commenced manufacture and sale of the product.” Afterward the product of Standard Nut Margarine was declared taxable by the Commissioner who demanded and threatened to collect a tax on it. “The enforcement of the Oleomargarine Act * * * would impose a tax that [Standard Nut Margarine Co.] would be unable to pay, would subject it to heavy penalties and the forfeiture of its plant, together with the materials and manufactured product on hand, and would destroy its business.” 284 U.S. 498, 506-507, 52 S.Ct. 260, 262. We might also point out the stronger detailed factual background, of the Miller case, reported as Miller v. Standard Nut Margarine Co. of Florida, 5 Cir., 1931, 49 F.2d 79 where the Court of Appeals affirmed the decree perpetually enjoining the collector. Affirming the Fifth Circuit’s decision, the majority of Justices in the Supreme Court said: “Independently of, and in cases arising prior to, the enactment of the provision * * * which became Rev.St. § 3224 [now § 7421], this court, in harmony with the rule generally followed in courts of equity, held that a suit will not lie to restrain the collection of a tax upon the sole ground of its illegality. The principal reason is that, as courts are without authority to apportion or equalize taxes or to make assessments, such suits would enable those liable for taxes in some amount to delay payment or possibly to escape their lawful burden, and so to interfere with and thwart the collection of revenues for the support of the government. And this court likewise recognizes the rule that, in cases where complainant shows that in addition to the illegality of an exaction in the guise of a tax there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collector. [Citing.] Section 3224 is declaratory of the principle first mentioned and is to be construed as near as may be in harmony" }, { "docid": "7971495", "title": "", "text": "1926 (44 Stat. 61 [26 USCA § 1069 and note]), a tax liability could only be enforced against a transferee of the taxpayer’s property by a suit in equity or an action at law (Phillips v. Commissioner, 283 U. S. 589, 51 S. Ct. 608, 75 L. Ed. 1289), and property of such a transferee could not be lawfully subjected to a distraint for taxes assessed against the transferor. It follows that the bank account of the Lion Company could not be lawfully subjected to the distraint and levy. Was it so subjected? Distraint is regulated by statute. A levy, notification, and sale is required. No sale can be made for a period of ten days after the levy. Sections 117-119', title 26, USCA. Such a procedure was not carried out. Instead, when the deputy collector undertook to levy upon the bank account, the bank’s officer prepared a cashier’s cheek and delivered it to Farr, an officer of the Lion Company, who then gave it to the deputy collector. Farr protested solely on the ground that the tax of the Wyoming Company was being collected for the wrong year. We think the effect of the transaction' was not the unlawful subjection of the bank account to a distraint, but a payment made under protest by the Lion Company. The Lion Company, instead of paying the tax, could have enjoined the distraint and sale of its bank account for such tax. Section 3224, R. S. (26 USCA § 154), providing that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court,” would not have inhibited such an injunction. The injunction would not have been against the collection of a tax, but against the enforcement by distraint of a legal or equitable liability of a transferee of the taxpayer’s property. Long v. Rasmussen (D. C. Mont.) 281 F. 236; Trinacia Real Estate Co., Inc., v. Clarke (D. C. N. Y.) 34 F.(2d) 325. Phillips v. Commissioner, supra, does not hold otherwise. That decision dealt with a distraint proceeding occurring subsequently to the" }, { "docid": "790361", "title": "", "text": "— * * * no suit for the purpose of restraining the assess- or collection of any tax shall be maintained in any court.” In construing the foregoing section, the Supreme Court, in Miller v. Standard Nut Margarine Co., 1932, 284 U.S. 498, 509, 52 S.Ct. 260, 263, 76 L.Ed. 422, said: “Independently of, and in cases arising prior to, the enactment of the provision (Act of March 2, 1867, 14 Stat. 475) which became R.S., § 3224, this court in harmony with the rule generally followed in courts of equity held that a suit will not lie to restrain the collection of a tax upon the sole ground of its illegality. The principal reason is that, as courts are without authority to apportion or equalize taxes or to make assessments, such suits would enable those liable for taxes in some amount to delay payment or possibly to escape their lawful burden and so to interfere with and thwart the collection of revenues for the support of the government. And this court likewise recognizes the rule that, in cases where complainant shows that in addition to the illegality of an exaction in the guise of a tax there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collector. * * * This court has given effect to section 3224 in a number of cases. Snyder v. Marks, 109 U.S. 189, 191, 3 S.Ct. 157, 27 L.Ed. 901; Dodge v. Osborn, 240 U.S. 118, 121, 36 S.Ct. 275, 60 L.Ed. 557; Dodge v. Brady, 240 U.S. 122, 36 S.Ct. 277, 60 L.Ed. 560. It has never held the rule to be absolute, but has repeatedly indicated that extraordinary and exceptional circumstances render its provisions inapplicable. Hill v. Wallace, 259 U.S. 44, 62, 42 S.Ct. 453, 66 L.Ed. 822; Dodge v. Osborn, supra, 240 U.S. 121, 36 S.Ct. 275; Dodge v. Brady, supra. Cf. Graham v. Du Pont, 262 U.S. 234, 257, 43 S.Ct. 567, 67 L.Ed. 965; Brushaber v. Union Pacific R. Co., 240 U.S." }, { "docid": "2312432", "title": "", "text": "and Sheltons againt Shelton, Jr. and the corporation. The District Judge was of the opinion that he was deprived of the power to enjoin the collection of the taxes by the broad provisions of Sec. 3653 of the I.R.C., which provides: “§ 3653. Prohibition of suits to restrain assessment or collection “(a) Tux. Except as provided in sections 272(a), 871(a) and 1012(a), no suit for the purpose of restraining the assessment or collection \"of any tax shall be maintained in' any court. “(b) Liability of transferee or fiduciary. No suit shall be maintained in any court for the purpose of restraining the assessment or collection of (1) the amount of the liability, at law or in equity, of a transferee of property of a taxpayer in respect of any income, war-profits, excess-profits, or estate tax, (2) the amount of the liability, at law or in equity, of a transferee of property of a donor in respect of any gift tax, or (3) the amount of the liability of a fiduciary under section 3467 of the Revised Statutes (U.S.C., Title 31, ,§ 192) in respect of any such tax.” We think that this holding should not be sustained since the circumstances clearly bring the cases within the rule established by the Supreme Court in Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422, and by subsequent decisions that Sec. 3653 is general in its terms and should not be construed as abrogating the equitable principles which permit suits to restrain collection where the exaction is illegal and there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisdiction. It may be noted, at the outset, that the broad prohibition of Sec, 3653(a) against the maintenance of any suit to restrain the collection of any taxes is directed at the person liable for the taxes and is not intended to preclude the courts from affording protection to one not liable to the taxes whose property may be in danger of seizure and sale by the taxing authorities. See Tower" }, { "docid": "4223524", "title": "", "text": "of the Tax Court entered pursuant to a stipulation of the parties. The Court held: “Certainly the judgments entered are res adjudícala of the tax claims for the years 1933, 1938, and 1939, whether or not the basis of the agreements on which they rest reached the merits.” See also: American Woolen Mills v. U. S., 18 F.Supp. 783, 85 Ct.Cl. 101, affirmed 21 F.Supp. 125, 85 Ct.Cl. 101, and Id., 1021, 85 Ct.Cl. 101, Continental Petroleum Co. v. U. S., 10 Cir., 87 F.2d 91. The decision of the Tax Court, being res ad judicata of the tax claims for the years in question, the Commissioner was without right or authority to collect any additional income taxes for the year 1943. The warrant of distraint issued for the collection of the 1943 taxes was void, as it was not based on a valid assessment. Section 272(a) (1) of the Revenue Act of 1939, Title 26 U.S.C.A. prohibits the .Commissioner from collecting any tax while a case is pending in the Tax Court and before its decision has become final. The Act expressly provides that the Court may enjoin the collection of a tax pending such proceeding. Section 272(b) prohibits the Commissioner from assessing or collecting any part of a deficiency disallowed by final decision of the Tax Court. The taxes which the Commissioner is now attempting to collect were, in effect, disallowed .by the final decision of the Tax Court and come directly within the prohibitions of § 272(a) (1) and § 272(b) which authorize the Court to grant an injunction. In Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 263, 76 L.Ed. .422, the Supreme Court said: “* * * And this court likewise recognizes the rule that, in cases where complainant shows that in addition to the'illegality of an exaction in the guise of a tax there exists special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collector. * * *” See: Midwest Haulers, Inc. v. Brady, 6" }, { "docid": "6788651", "title": "", "text": "is no overassessment of employment taxes.” While the result is questioned, there has been no contention or holding that such review does not constitute a fair and adequate administrative remedy. Properly interpreted, Miller v. Standard Nut Margarine Company, supra, is not an attempt of the judiciary to emasculate by implied exceptions the clear .and explicit prohibition of jurisdiction ■contained in the statute. The theory of •that case is that the exaction was not a true tax, but simply an “attempted exaction by a tax official under the guise of an assessed tax.” That theory was thus stated by Judge Walker for this Court, and was explicitly adopted by the Supreme Court: “And this court likewise recognizes the rule that, in cases where complainant shows that in addition to the illegality of an exaction in the guise of a tax there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collector.” (Emphasis supplied.) Miller v. Standard Nut Margarine Company, 1932, 284 U.S. 498, 509, 52 S.Ct. 260, 263, 76 L.Ed. 422. That Miller v. Standard Nut Margarine Company presented such an exceptional case as to amount to an abuse of jurisdiction by the tax officials is made ■apparent in the extended and able analysis of that case in Homan Mfg. Co. v. Long, 7 Cir., 1957, 242 F.2d 645, 651-653. In no other case has the Supreme Court permitted an injunction to restrain the assessment or collection of a tax. The cases are collected and discussed in 9 Mertens Law of Federal Income Taxation, Zimet Revision, Section 49.212, where it is stated: “With just one exception, those cases in which the Supreme Court has permitted injunctions restraining Government officials were all cases in which the Court held that the purported tax sought to be restrained was in reality not a tax but a penalty, and the Court said that the statutory prohibition did not apply to the collection of penalties. The decision in Miller v. Standard Nut Margarine Company is the only case in which" } ]

[ { "docid": "10233320", "title": "", "text": "The court always retains jurisdiction to review and interpret its own orders. However, even though jurisdiction continues until the case is closed and is also found through section 1142(b) to resolve post-confirmation matters, that does not necessarily mean that the bankruptcy court is compelled to hear and decide every dispute that occurs after a plan is confirmed. Accordingly, abstention is appropriate under these specific circumstances. B. PROCEDURE FOR ABSTENTION: This Report and Recommendation has been forwarded to the district court sua sponte. The importance of these issues as they relate to case administration, and in particular as they relate to these parties and the continuing plethora of pleadings filed, compel this court under 11 U.S.C. § 105 to expeditiously resolve these issues before more effort is expended by this court and counsel. For the court to harbor doubts regarding the propriety of continuing this proceeding, pending the parties raising the abstention issue, would be inconsistent with judicial responsibility. Matters involving abstention come within the general context of subject matter jurisdiction. Questions involving subject matter jurisdiction may be asserted by any party at any time or raised by a court sua sponte. See e.g. Bankruptcy Rule 7012(h) (sic); In re Ryther, 799 F.2d 1412 (9th Cir.1986). Abstention of a particular proceeding is set forth in 28 U.S.C. § 1334(c): (1) Nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11. (2) Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can" } ]

[ { "docid": "9342722", "title": "", "text": "Systems, 41 B.R. 749 (Bankr.D.N.D.1984), while recognizing that mandatory abstention did not apply because the instant adversary proceeding had been filed prior to § 1334’s effective date, concluded that [ajbstention is mandatory under [§ 1334(c)(2)] where the case is: (1) based upon a state law claim or cause of action which although related to a Title 11 case did not arise under Title 11 or out of a Title 11 case and, (2) the case could not have been commenced in federal court absent the fact of a bankruptcy petition and, finally, (3) if the case were commenced in a state court it could be timely adjudicated. Dakota Grain Systems, 41 B.R. at 750. In another early case which considered the pending state court action question, State Bank of Lombard v. Chart House, 46 B.R. 468 (N.D.Ill.1985), the district court, quoting Dakota Grain Systems, found that “§ 1334(c)(2) mandates abstention in matters that would have been filed in state court rather than federal court but for a bankruptcy filing.” Chart House, 46 B.R. at 471; Dakota Grain Systems, 41 B.R. at 750. (Emphasis added). The courts both in Dakota Grain Systems and Chart House clearly imply that a pending state court action need not be filed prior to a motion for mandatory abstention. (A number of other courts, while accepting a pending state court action as an element for consideration in determining whether or not to mandatorily abstain, have concluded that this element is not dispositive in deciding whether or not to abstain. See, In re Illinois-California Express, Inc., 50 B.R. 232, 241 (Bankr.D.Colo.1985); In re Arnold, Printworks, 61 B.R. 520, 526 (D.Mass.1986); In re P & P Oil Fields Equipment, Inc., 71 B.R. 621, 623 (Bankr.D.Colo.1987)). After considering the case law in support of the pending state court action prerequisite and finding it to be highly suspect at best, this court analyzed several other relevant sources. This court’s review of the legislative history proved to be inconclusive, although it did seem clear that if a pending state court action was a prerequisite in the individual or collective minds of" }, { "docid": "1951277", "title": "", "text": "U.S.C. § 1334(c)(2)(emphasis added). There are six requirements for mandatory abstention: (1) a timely motion is made; (2) the proceeding is based upon a state law claim or state law cause of action; (3) the proceeding is related to a case under Title 11; (4) the proceeding does not arise under Title 11; (5) the action could not have been commenced in a federal court absent jurisdiction under 28 U.S.C. § 1334; and (6) an action is commenced, and can be timely adjudicated, in a state forum of appropriate jurisdiction. Woods v. Passodelis, 234 B.R. 52, 64 (Bankr.W.D.Pa.1999) (citing In re Taylor, 115 B.R. 498, 500 (E.D.Pa.1990)). Bankruptcy courts must abstain from a proceeding when all six requirements are present. In re Passodelis, 234 B.R. at 64. Mandatory abstention may be granted only upon motion by a party and not sua sponte by the court. Moreover, mandatory abstention applies only to non-core proceedings under requirements three and four. In the case at bar, there was no motion for mandatory abstention and the proceeding is core. Therefore, mandatory abstention plainly does not apply here. E. Permissive Abstention The permissive abstention statute provides: Except with respect to a case under chapter 15 of title 11, nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11. 28 U.S.C. § 1334(c)(1). Unlike mandatory abstention, the motion requirement is conspicuously absent from the permissive abstention statute. Accordingly, by implication, a bankruptcy court may permissively abstain sua sponte. See, e.g., Gober v. Terra + Corp., 100 F.3d 1195, 1207 n. 10 (5th Cir.1996) (“Permissive abstention may be raised by the court sua sponte.”)', Scherer v. Carroll, 150 B.R. 549, 552 (D.Vt.1993) (“... [Questions of abstention and remand may be addressed sua sponte by the Bankruptcy Court.”); Richmond Tank Car Co. v. CTC Invs., 119 B.R. 124, 125 (S.D.Tex.1989) (sua sponte considers whether to abstain). Another critical distinction" }, { "docid": "13577798", "title": "", "text": "for mandatory abstention and states: Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11, but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction. Although this adversary proceeding does not contain all of the elements necessary for mandatory abstention, an examination of the elements of the mandatory abstention provision guides the Court in determining whether to exercise discretionary abstention under § 1334(c)(1). Courts often look to the mandatory abstention provisions as a guide to whether they should exercise discretionary abstention. If most of the elements of mandatory abstention are present, they are inclined to exercise discretionary abstention. See Counts v. Guaranty Savings & Loan Assoc. (In re Counts), 54 B.R. 730, 736 (Bankr.D.Colo.1985); Braucher v. Continental Illinois Nat. Bank & Trust (In re Illinois-California Express, Inc.), 50 B.R. 232, 240-241 (Bankr.D.Colo.1985). The first element of mandatory abstention requires the filing of a timely motion. Although there is no such timely motion on file in this adversary proceeding, that fact is not an express requirement for discretionary abstention and it has been held that the abstention question can be raised by the court sua sponte. In In re Terracor, 86 B.R. 671, 677 (D.Utah 1988), the court states that: For the court to harbor doubts regarding the propriety of continuing this proceeding, pending the parties raising the abstention issue, would be inconsistent with judicial responsibility. Matters involving abstention come within the general context of subject matter jurisdiction. Questions involving subject matter jurisdiction may be asserted by any party at any time or raised by a court sua sponte. The opinion cites several cases standing for the proposition that abstention may be raised by the court sua sponte. Id. at" }, { "docid": "6789595", "title": "", "text": "action could not have been commenced in a court of the United States absent jurisdiction under this section, ... if an action is commenced, it can be timely adjuciated, in a State form of appropriate jurisdiction.” 28 U.S.C. § 1334(c)(2). Inasmuch as Commercebank has not moved for abstention under 11 U.S.C. § 305, abstention on that ground will not be considered. 28 U.S.C. § 1334(c)(2) only applies to cases that meet the following requirements: 1. A timely motion is made; 2. The proceeding is based upon a State law claim or State law cause of action; 3. The proceeding is related to a case under Title 11; 4. The proceeding does not arise under Title 11; 5. The proceeding does not arise in a case under Title 11; 6. The action could not have been commenced in a Court of the United States absent jurisdiction under 28 U.S.C. § 1334; and 7. An action is commenced and can be timely adjudicated in a State form of appropriate jurisdiction. 28 U.S.C. § 1334(c)(2); In re S.E. Hornsby & Sons Sand and Gravel Co., 45 B.R. 988, 996 (Bankr.M.D. La.1985). Mandatory abstention does not apply to the instant case in that there is no pending state court action. See, In re S.E. Hornsby & Sons Sand and Gravel Co., supra; Matter of Boughton, 49 B.R. 312, 13 C.B. C.2d 44 (Bankr.N.D.Ill.1985); In re Mauldin, 52 B.R. 838 (Bankr.N.D.Miss.1985); Matter of Climate Control Engineers, Inc., 51 B.R. 359 (Bankr.M.D.Fla.1985); In re Illinois-California Express, Inc., 50 B.R. 232, 13 C.B.C.2d 324 (Bankr.D.Colo.1985). However, discretionary abstention pursuant to 28 U.S.C. § 1334(c)(1) does apply to this adversary proceeding. This court may abstain from hearing a bankruptcy case or proceeding related to a case under Title 11, in the interest of justice, or in the interest of comity with state courts or respect for state law. 28 U.S.C. § 1334(c)(1). This court will exercise its discretion and abstain from hearing this adversary proceeding for the following reasons: It is apparent to this court that this entire adversary proceeding is founded upon the application and interpretation of" }, { "docid": "13577803", "title": "", "text": "action is a prerequisite for mandatory abstention. See World Solar Corp. v. Steinbaum (In re World Solar Corp.), 81 B.R. 603, 609-12 (Bankr.S.D.Cal.1988) (concluding that a pending state court action is not a prerequisite for mandatory abstention); cf. Kolinksy v. Russ (In re Kolinsky), 100 B.R. 695, 704 (Bankr.S.D.N.Y.1989) (stating that a pending state action in an appropriate forum is an essential element for mandatory abstention). Some courts merely decide whether such an action can be filed on a timely basis in a state court of appropriate jurisdiction. World Solar Corp., 81 B.R. at 612. It is unnecessary to adopt either view at this time in light of this Court’s decision to exercise discretionary abstention. In the present ease, all of the elements of mandatory abstention are met except that a timely motion is lacking, and there is no pending state court action, if in fact that is a prerequisite for mandatory abstention. The Court finds, however, that even if it has jurisdiction, it should exercise discretionary abstention in light of the presence of these elements, along with the Court’s concern for judicial economy and the interest of comity with the state courts and respect for state law. Furthermore, since the Court has determined that these claims are “non-core” proceedings, this Court would not enter final orders and would be limited to submitting proposed findings of fact and conclusions of law to the district court for its de novo review, causing further duplication and judicial inefficiency. See 28 U.S.C. § 157(c)(1). These proceedings involve issues of state law, and respect for state law favors state courts interpreting the laws of the state forum. Braucher v. Continental Illinois Nat. Bank & Trust (In re Illinois-California Express, Inc.), 50 B.R. 232, 240 (Bankr.D.Colo.1985). “Where a state court proceeding sounds in state law and bears a limited connection to debtor’s bankruptcy ease, abstention is particularly compelling.” National Union Fire Insur. Co. v. Titan Energy, Inc. (In re Titan Energy, Inc.), 837 F.2d 325, 332 (8th Cir.1988) (citation omitted). This Court finds that it has no “related to” jurisdiction over these state law causes" }, { "docid": "18599681", "title": "", "text": "instant proceeding. In summary, under the foregoing authority, this matter is a “core” proceeding within the meaning of 28 U.S.C. § 157 and this Court has the jurisdiction to enter a final judgment and order herein. Even if this proceeding were considered to be non-core in nature, the parties have consented to this Court’s jurisdiction and such consent is constitutionally permissible. This Court must now consider the issue of discretionary abstention of a core proceeding. II. ABSTENTION. Abstention under 28 U.S.C. § 1334(c)(2) is mandatory where the action is: (1) based upon a state-law claim or cause of action that is non-core; (2) the case could not have been commenced in federal court absent the fact of a bankruptcy petition; and (3) if the case were commenced in a state court it could be timely adjudicated. Mandatory abstention under § 1334(c)(2) is not required in this matter because: (1) this matter is a core proceeding; (2) a separate basis for federal jurisdiction exists in this court—diversity jurisdiction under 28 U.S.C. § 1332(a)(1); and (3) the timely adjudication in state court was not considered because no evidence was adduced on that issue. Grumman has also moved for discretionary abstention under 28 U.S.C. § 1334(c)(1). Under this section, the court has discretion to abstain from hearing a bankruptcy proceeding “in the interests of justice, or in the interest of comity with state courts or respect for state law.” Grumman argues that discretionary abstention is warranted due to the needless duplication which will occur because of the pending state action. To support this argument, Grumman relies upon In re Counts, 54 B.R. 730 (Bankr.D.Colo.1985) and In re Dakota Grain Systems, Inc., 41 B.R. 749 (Bankr.D.N.D.1984). In both cases the creditor had not filed a proof of claim against the debtor. The court in Dakota Grain Systems, applied discretionary abstention only because mandatory abstention under § 1334(c)(2) was not available to non-core matters pending prior to the effective date of the 1984 Amendments. Grumman’s reliance on the foregoing authority is misplaced. Voluntary abstention should be considered where the debtor’s estate acquires the right to" }, { "docid": "9342717", "title": "", "text": "core proceeding) is considered to be incorrectly decided by most authorities. See, 1 Colliers on Bankruptcy, para. 3.01, pp. 3-44 (15th ed. 1987); Matter of Century Brass Products, Inc., 58 B.R. 838 (Bankr.D.Conn.1986) (holding that claims on accounts receivable and related counterclaims were not core proceedings). 4. Lack of Independent Jurisdiction: Another of the essential elements for mandatory abstention under § 1334(c)(2) is that the action could not have been commenced in federal court but for .the filing of bankruptcy. In re S.E. Hornsby & Sons Sand & Gravel Co., Inc., 45 B.R. 988, 996 (Bankr.M.D.La.1985). World Solar claims that this court has independent jurisdiction to hear this adversary proceeding because it involves questions of federal law. 28 U.S.C. § 1331(a). In support of this claim, World Solar states that, “the pivotal issue of this case will be the determination of the [correct interpretation] of the HUD regulations on solar heating installation [contracts].” However, as previously stated in Part C.2. of this opinion, the court in Jemo Associates Inc. v. Green Metropolitan Housing Authority, 523 F.Supp. 186 (D.C.Ohio 1981) held that breach of contract actions which involve interpretation of HUD regulations are not federal questions. 523 F.Supp. at 189. 5. Action Commenced in State Court: The next element of § 1334(c)(2) derives from the words “if an action is com-menced_” At issue is whether a state court action must be pending at the time when the mandatory abstention motion is considered. The majority of cases to have considered this issue have held that a pending state court action is a prerequisite for mandatory abstention. Taxel v. Commerce Bank, 64 B.R. 980 (Bankr.S.D.Cal.1986); Ram Construction Co. v. Port Authority of Allegheny County, 49 B.R. 363 (W.D.Pa.1985); Bracher v. Continental Illinois National Bank & Trust Company, 50 B.R. 232 (Bankr.D.Colo.1985); Matter of Boughton, 49 B.R. 312 (Bankr.N.D.Ill.1985); Matter of Climate Control Engineers, Inc., 51 B.R. 359 (Bankr.M.D.Fla.1985). However, all the early cases which held that a pending state court action was a prerequisite for mandatory abstention rely on either S.E. Hornsby & Sons Sand & Gravel Co., 45 B.R. 988, 996 (Bankr.M.D.La.1985)" }, { "docid": "23499792", "title": "", "text": "and application of amendments]). Otherwise, abstention is mandatory for related matters where there is a timely motion of a party and a state court action has commenced. 28 U.S.C. § 1334(c)(2). “By requiring mandatory abstention, Congress has adopted a policy which clearly favors resolution of related state law causes of action in state courts.” In re Smith-Douglass, Inc., 43 B.R. 616 (Bankr.E.D.N.C.1984). Therefore, it is appropriate to examine the elements of the mandatory abstention provision for guidance in exercising discretionary abstention under 28 U.S.C. § 1334(c)(1). Section 1334(c)(2) provides: Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under Title 11 but not arising under Title 11 or arising in a case under Title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a state forum of appropriate jurisdiction. It is apparent that the breach of contract and declaratory judgment counts are state law causes of action which could not be commenced in a federal court absent Section 1334(b). There is also no reason to believe that these proceedings could not be timely adjudicated in a state forum. Hence, , the elements for mandatory abstention under Section 1334(c)(2) are present here except for the single criterion that a proceeding in the state forum has been commenced. Yet there need not be a case pending for discretionary abstention to apply. In re Smith-Douglass, Inc., 43 B.R. at 618 n. 5. Therefore, although mandatory abstention is not applicable to the present proceedings, most of the criteria that Congress set forth for making the abstention decision are met. It would thus be keeping with the policy Congress contemplated for this Court to abstain here. The decision to abstain is reinforced by the interest promoted by exercising respect for state law. It is apparent that this proceeding is based on state law causes" }, { "docid": "1951276", "title": "", "text": "concerns of comity and judicial convenience should be met, not by rigid limitations on the jurisdiction of federal courts, but by the discretionary exercise of abstention when appropriate in a particular case.... Wood v. Wood, 825 F.2d 90, 93 (5th Cir.1987) (emphasis added). Thus, unlike cases controlled by Colorado River, bankruptcy courts have broad discretion whether to abstain from adjudicating claims. D. Mandatory Abstention There are two types of abstention under 28 U.S.C. § 1334(c), mandatory and permissive. The mandatory abstention provision reads: Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction. 28 U.S.C. § 1334(c)(2)(emphasis added). There are six requirements for mandatory abstention: (1) a timely motion is made; (2) the proceeding is based upon a state law claim or state law cause of action; (3) the proceeding is related to a case under Title 11; (4) the proceeding does not arise under Title 11; (5) the action could not have been commenced in a federal court absent jurisdiction under 28 U.S.C. § 1334; and (6) an action is commenced, and can be timely adjudicated, in a state forum of appropriate jurisdiction. Woods v. Passodelis, 234 B.R. 52, 64 (Bankr.W.D.Pa.1999) (citing In re Taylor, 115 B.R. 498, 500 (E.D.Pa.1990)). Bankruptcy courts must abstain from a proceeding when all six requirements are present. In re Passodelis, 234 B.R. at 64. Mandatory abstention may be granted only upon motion by a party and not sua sponte by the court. Moreover, mandatory abstention applies only to non-core proceedings under requirements three and four. In the case at bar, there was no motion for mandatory abstention and the proceeding is core." }, { "docid": "1461002", "title": "", "text": "mandated to hear claims “related to” an underlying bankruptcy case when these claims fall under the statutory and case law considerations for permissive abstention. In re Republic Reader’s Serv., Inc., 81 B.R. at 425. “The abstention provisions of the Act demonstrate the intent of Congress that concerns of comity and judicial convenience should be met, not by rigid limitations on the jurisdiction of federal courts, but by the discretionary exercise of abstention when appropriate in a particular case.” In re Wood, 825 F.2d 90, 93 (5th Cir.1987). The broad grant of jurisdiction found in 28 U.S.C. Section 1334(a) is only over the actual bankruptcy case itself. In re Republic Reader’s Serv. Inc., 81 B.R. at 426. Jurisdiction over “civil proceedings arising under Title 11, or arising in or related to cases under Title 11” is concurrent with “courts other than the district court....” 28 U.S.C. § 1334(b). This provision narrows the grant of exclusive jurisdiction exercised by the bankruptcy court. 28 U.S.C. § 1334(c)(1) reads: “[Njothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11.” Whereas mandatory abstention must be raised by motion of a party, permissive abstention may be raised sua sponte. In re Gober, 100 F.3d 1195, 1207 n. 10 (5th Cir.1996). The decision to abstain is left up to the broad discretion of the bankruptcy court. In re Wood, 825 F.2d at 93. There is nothing that will prevent a determination that permissive abstention is appropriate even where “some, but not all, of the requirements for mandatory abstention are met.” In re Gober, 100 F.3d at 1206. The bankruptcy court may permissively abstain from adjudicating an adversary proceeding regardless of whether it is core or non-core under 28 U.S.C. Section 157. Permissive abstention is more appropriate when the proceeding is non-core or merely “related to” the underlying bankruptcy. As determined above, in the discussion concerning “related to” jurisdiction," }, { "docid": "13577797", "title": "", "text": "claim or claims over which the district court has original jurisdiction.” 28 U.S.C. § 1367(c)(2). This seems a likely possibility when the federal statute conferring jurisdiction on the district court, 42 U.S.C. § 6901 et seq., does not provide the remedy plaintiffs request. Even if this Court is in error and has “related to” jurisdiction over this adversary proceeding, it does not follow that it must exercise jurisdiction. Section 1334(c) of Title 28, United States Code, sets forth provisions for mandatory and discretionary abstention that impact on the Court’s decision. Section 1334(e)(1) provides for the Court to exercise discretion by abstaining “in the interest of justice, or in the interest of comity with State courts or respect for State law.” The section reads: Nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11. Section 1334(e)(2) provides for mandatory abstention and states: Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11, but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction. Although this adversary proceeding does not contain all of the elements necessary for mandatory abstention, an examination of the elements of the mandatory abstention provision guides the Court in determining whether to exercise discretionary abstention under § 1334(c)(1). Courts often look to the mandatory abstention provisions as a guide to whether they should exercise discretionary abstention. If most of the elements of mandatory abstention are present, they are inclined to exercise discretionary abstention. See Counts v. Guaranty Savings &" }, { "docid": "9342718", "title": "", "text": "F.Supp. 186 (D.C.Ohio 1981) held that breach of contract actions which involve interpretation of HUD regulations are not federal questions. 523 F.Supp. at 189. 5. Action Commenced in State Court: The next element of § 1334(c)(2) derives from the words “if an action is com-menced_” At issue is whether a state court action must be pending at the time when the mandatory abstention motion is considered. The majority of cases to have considered this issue have held that a pending state court action is a prerequisite for mandatory abstention. Taxel v. Commerce Bank, 64 B.R. 980 (Bankr.S.D.Cal.1986); Ram Construction Co. v. Port Authority of Allegheny County, 49 B.R. 363 (W.D.Pa.1985); Bracher v. Continental Illinois National Bank & Trust Company, 50 B.R. 232 (Bankr.D.Colo.1985); Matter of Boughton, 49 B.R. 312 (Bankr.N.D.Ill.1985); Matter of Climate Control Engineers, Inc., 51 B.R. 359 (Bankr.M.D.Fla.1985). However, all the early cases which held that a pending state court action was a prerequisite for mandatory abstention rely on either S.E. Hornsby & Sons Sand & Gravel Co., 45 B.R. 988, 996 (Bankr.M.D.La.1985) or one another as support for the pending state court action prerequisite. In S.E. Hornsby, the Chapter 11 trustee filed an adversary action for an order to require the shareholder of the corporate debtor to turnover to the debtor any assets of the debtor in the shareholder’s possession or control. In considering whether to abstain, the court in S.E. Hornsby recited the following prerequisites: A. A timely motion is made; B. The proceeding is based upon a state law claim or state law cause of action; C. The proceeding is related to a case under Title 11; D. The proceeding does not arise under Title 11; E. The proceeding does not arise in a case under Title 11; F. The action could not have been commenced in a court of the United States absent jurisdiction under 28 U.S.C. § 1334; and G. An action is commenced and can be timely adjudicated in a state forum of appropriate jurisdiction. (Emphasis added). S.E. Hornsby, 45 B.R. at 996. Requirement G of the S.E. Hornsby list is a" }, { "docid": "5177091", "title": "", "text": "Both subsection (c)(1), discretionary abstention, and (c)(2), mandatory abstention, provide a basis for this decision. The elements of (c)(1) are met because collection of a debtor’s accounts receivable is a pure State law action. See Illinois-Calif. Express, Inc. v. Continental Ill. Nat’l Bank, 50 B.R. 232 (Bankr.D.Colo.1985). At best, this is a “related” proceeding which would not be before this Court absent the P & P bankruptcy filing. Therefore, in the “interest of comity” this Court can abstain. Secondly, and more importantly, abstention is appropriate here “in the interest of justice.” This bankruptcy district is experiencing a severe strain on its already scarce judicial resources in the current economic climate. Accordingly, adjudication of state law matters is clearly imprudent and as such abstention is appropriate. Furthermore, mandatory abstention pursuant to § 1334(c)(2) applies to this matter. While the standards for § 1334(c)(1) and (2) are generally the same, there is one difference in that (c)(2) contains language stating that the court “shall abstain if an action is commenced ... in a State forum ...” This Court, as did Judge Clark in Illinois-California Express, considers that element to be a technical nicety but not critical. See also In re Arnold Printworks, 61 B.R. 520, 526 (D.Mass.1986) in which Judge Freedman construed § 1334 and held “[t]hat there is not a State court case pending that is relevant, but to the Court’s mind, not dispositive.” Put simply, this matter should not be in this Court. It is not a “core” proceeding, it concerns only questions of State law, and would have never come before me absent P & P’s bankruptcy. As such, I abstain from hearing the instant case and hope that this opinion will send an unforgettable message to the bankruptcy bar of the district for future reference. It is, therefore, ORDERED that the Trustee’s complaint is dismissed because this Court abstains from hearing this matter for the reasons more fully stated herein. APPENDIX GRIN & BEAR IT by Fred Wagner (c) New America Syndicate, 1987 by permission of North America Syndicate, Inc." }, { "docid": "12808218", "title": "", "text": "or in the interest of comity with the state courts or respect for state law, from abstaining from hearing a particular proceeding arising under Title 11 or arising in or related to a case under Title 11. 28 U.S.C. § 1334(c)(1). Furthermore, the bankruptcy courts are derivatively vested with the power to abstain as units of the district court under 28 U.S.C. § 151. In re Lorren, 45 B.R. 584, 589 (Bankr.N.D.Ala.1984). See also Macon Prestressed Concrete Co. v. Duke, 46 B.R. 727 (Bankr.M.D.Ga.1985). Congress, with the addition of the mandatory abstention provision, has adopted a policy which favors resolution of related state law causes of actions in state courts. In re Smith-Douglas, Inc., 43 B.R. 616 (Bankr.E.D.N.C.1984). An examination of the elements of the mandatory abstention statute is appropriate for guidance in the proper exercise of discretionary abstention. In re Atlas Automotion, Inc., 42 B.R. 246 (Bankr.E.D.Mich.1984). The elements of mandatory abstention require that: (1) a timely motion be made; (2) a related proceeding is involved; (3) the action would not have been commenced in a federal court absent jurisdiction under Section 1334, and (4) an action is commenced and can be timely adjudicated in a state court forum. In the present matter, all the elements of mandatory abstention are met except that there is diversity among the parties, thus the matter has an independent basis for federal subject matter jurisdiction. Yet it should be noted that, but for the debtor’s filing a bankruptcy petition, the matter would not be in the bankruptcy forum now. In fact, the debtor’s initial choice was the district court in Dallas County, Texas, where he brought a complaint fundamentally identical to the one here. . The pendency of a state court action may constitute grounds for invoking the doctrine of abstention in order to foster the interests of judicial administration: comprehensive disposition of the litigation; conservation of judicial resources; and fairness to the parties. 1A J. Moore, Moore’s Federal Practice § 0.203[4] (2d ed. 1984). In re Ghen, 45 B.R. 780, 781 (Bankr.E.D.Pa.1985). Clearly sound policy mandates conservation of judicial resources. Here there" }, { "docid": "15867481", "title": "", "text": "and was therefore proper. Id. at 708. The affirmation of the bankruptcy court’s exercise of jurisdiction in Phillips is an affirmation of this Court’s exercise of' its “core” jurisdiction over the plaintiff’s notice of removal, the debtor’s motion to remand, the plaintiff's filed claim and the debtor's objection to that claim and of this Court's exercise of its discretion to abstain pursuant to 28 U.S.C. § 1334(c)(1) from hearing the substance of the plaintiff's action. . The discretionary abstention provisions of 28 U.S.C. § 1334(c)(1) allow this Court to raise this issue sua sponte. . The \"arising” and \"related” language of section 1334(c)(1) is identical to the “arising” and \"related” criteria of jurisdiction; consequently, if a matter is properly removed to a court with \"arising\" or “related\" jurisdiction, the abstention provisions of section 1334(c)(1) may be considered. . At least one court believes that, \"abstention under § 1334(c), be it mandatory or discretionary, has no application in the context of a removed action.\" In re Branded Products, Inc., 154 B.R. 936 (Bankr.W.D.Tex.1993) (reasoning that once the action is removed from the State Court, that there is no longer any state court action for a federal court to abstain from). . Also, since the plaintiff’s claim, the debtor’s objection to that claim and the debtor's counterclaim to that claim are all core proceedings, the mandatory abstention provisions are inapplicable. . The effect of remand on the administration of the bankruptcy estate must also be considered. Drexel Burnham Lambert Group, Inc. v. Vigilant Ins. Co., 130 B.R. 405, 407 (S.D.N.Y.1991); In re Walsh, 79 B.R. 28, 29 (D.Nev.1987); Allen County Bank & Trust Co. v. Valvmatic Int'l Corp., 51 B.R. 578, 582 (N.D.Ind.1985); In re Shop & Go, Inc., 124 B.R. 915, 919 (Bankr.M.D.Fla.1991). .Courts recognize that decisions to remand an action and decisions to abstain from hearing an action produce the same results. Baxter Healthcare Corp. v. Hemex Liquidation Trust, 132 B.R. 863, 867 (N.D.Ill.1991); Lone Star Industries, Inc. v. Liberty Mutual Insurance, 131 B.R. 269, 272 (D.Del.1991). . Seale v. Owens & O-M Management Group, Inc., 134 B.R. 181, 185" }, { "docid": "16689313", "title": "", "text": "determination to be made de novo by a district court judge since review of the bankruptcy judge’s decision is explicitly made subject to review under the standards applicable to non-core proceedings. Bankruptcy Rules 5011(b); 9033. The Rules leave a gap with respect to a sua sponte decision to abstain by the bankruptcy judge. Yet such sua sponte acts would not only appear to be within the broad authority given bankruptcy judges by 11 U.S.C. § 105, but necessary to make meaningful the fact that discretionary abstention, unlike mandatory abstention, need not be requested by a party. Since the district court will normally not have occasion to consider the desirability of discretionary abstention until it is largely academic because trial has been had, the only judge able to abstain sua sponte is the bankruptcy judge. Other courts have recognized sua sponte abstention as available. In re Terracor, supra, 86 B.R. 671, 677 n. 15; In re Vallis, 97 B.R. 124, 129 n. 1 (D.Mass.1989); (adopting report and recommendation of bankruptcy judge) In re World Financial Services Center, Inc., 81 B.R. 33, 39 (Bankr.S.D.Cal.1987); Matter of Dart & Bogue, Inc., 52 B.R. 594, 598 (Bankr.D.Conn.1985); In re Coan, 95 B.R. 87, 89 (Bankr.N.D.Ill.1988); see also, 1 Collier on Bankruptcy ¶ 3.01[3] at 3-74 (15 ed.1988). That the bankruptcy judge acts sua sponte would not, however, appear to change the character of the decision to abstain from one that, like non-core decisions, must be finally made by the district court. In re Container Transport, Inc., 86 B.R. 804, 806 (E.D.Pa.1988). Hence, this Court appears to be limited to recommending abstention and it so advised the parties. They were told that this Court was recommending to the District Court that it abstain from exercising its jurisdiction so that this dispute can be adjudicated in the state forum where it is pending. However, this Court made clear to the parties that this recommendation was predicated on the assumption that the matter would be reached for trial within a reasonable period of time. Should that not prove to be the case, the reasons dictating abstention will" }, { "docid": "5177090", "title": "", "text": "section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11. (2) Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction. Any decision to abstain made under this subsection is not reviewable by appeal or otherwise ... In the instant matter, as with future disputes of this kind, the Court will abstain from hearing this type of case. Both subsection (c)(1), discretionary abstention, and (c)(2), mandatory abstention, provide a basis for this decision. The elements of (c)(1) are met because collection of a debtor’s accounts receivable is a pure State law action. See Illinois-Calif. Express, Inc. v. Continental Ill. Nat’l Bank, 50 B.R. 232 (Bankr.D.Colo.1985). At best, this is a “related” proceeding which would not be before this Court absent the P & P bankruptcy filing. Therefore, in the “interest of comity” this Court can abstain. Secondly, and more importantly, abstention is appropriate here “in the interest of justice.” This bankruptcy district is experiencing a severe strain on its already scarce judicial resources in the current economic climate. Accordingly, adjudication of state law matters is clearly imprudent and as such abstention is appropriate. Furthermore, mandatory abstention pursuant to § 1334(c)(2) applies to this matter. While the standards for § 1334(c)(1) and (2) are generally the same, there is one difference in that (c)(2) contains language stating that the court “shall abstain if an action is commenced ... in a State forum ...” This" }, { "docid": "13577799", "title": "", "text": "Loan Assoc. (In re Counts), 54 B.R. 730, 736 (Bankr.D.Colo.1985); Braucher v. Continental Illinois Nat. Bank & Trust (In re Illinois-California Express, Inc.), 50 B.R. 232, 240-241 (Bankr.D.Colo.1985). The first element of mandatory abstention requires the filing of a timely motion. Although there is no such timely motion on file in this adversary proceeding, that fact is not an express requirement for discretionary abstention and it has been held that the abstention question can be raised by the court sua sponte. In In re Terracor, 86 B.R. 671, 677 (D.Utah 1988), the court states that: For the court to harbor doubts regarding the propriety of continuing this proceeding, pending the parties raising the abstention issue, would be inconsistent with judicial responsibility. Matters involving abstention come within the general context of subject matter jurisdiction. Questions involving subject matter jurisdiction may be asserted by any party at any time or raised by a court sua sponte. The opinion cites several cases standing for the proposition that abstention may be raised by the court sua sponte. Id. at n. 15. The second element of mandatory abstention requires that the proceeding be based upon a state law cause of action. This is clearly the case here. Plaintiffs seek damages arising out of their purchase of a home constructed on property contaminated by a broken sewer main. They allege fraud, negligent misrepresentation, breach of contract, breach of fiduciary duty, violation of the Kansas Consumer Protection Act, and unjust enrichment. While they also allege violation of the Resource Conservation and Recovery Act, a federal statute, they seek only damages, a form of relief the statute does not provide them. They are dealing here with viable state law causes of action only. The third element of mandatory abstention requires that the adversary proceeding be “related to” a case under Title 11 but not arise under Title 11 or arise in a ease under Title 11. Matters “arising under title 11, or arising in a case under title 11” are “core proceedings.” See 28 U.S.C. § 157(b)(1). Core proceedings are those which have no existence outside of bankruptcy." }, { "docid": "15867480", "title": "", "text": "arising in or related to cases under title 11. Writing for the court in Phillips, Circuit Judge John M. Walker, Jr. stated: The most obvious limitation on the applicability of mandatory abstention is that it applies only to claims \"related to a case under title 11 but not arising under title 11 or arising in a case under title 11”; that is, abstention is only mandated with respect to non-core matters. See In re Mills, 163 B.R. 198, 202 (Bankr. D.Kan.1994); In re Robb, 139 B.R. 791, 796 (Bankr.S.D.N.Y.1992). When a district court abstains from hearing cases involving \"core” proceedings, the abstention decision can only be made pursuant to § 1334(c)(1), which leaves abstention to the district judge’s discretion. Such decisions are subject to appellate review. In re Ben Cooper, 924 F.2d [36] at 38 [(2nd Cir.1991)]. Given our conclusion that the determination of the City's claim is a core matter, mandatory abstention under § 1334(c)(2) does not apply. See id. Consequently, the bankruptcy court's exercise of jurisdiction in this case was within its discretion and was therefore proper. Id. at 708. The affirmation of the bankruptcy court’s exercise of jurisdiction in Phillips is an affirmation of this Court’s exercise of' its “core” jurisdiction over the plaintiff’s notice of removal, the debtor’s motion to remand, the plaintiff's filed claim and the debtor's objection to that claim and of this Court's exercise of its discretion to abstain pursuant to 28 U.S.C. § 1334(c)(1) from hearing the substance of the plaintiff's action. . The discretionary abstention provisions of 28 U.S.C. § 1334(c)(1) allow this Court to raise this issue sua sponte. . The \"arising” and \"related” language of section 1334(c)(1) is identical to the “arising” and \"related” criteria of jurisdiction; consequently, if a matter is properly removed to a court with \"arising\" or “related\" jurisdiction, the abstention provisions of section 1334(c)(1) may be considered. . At least one court believes that, \"abstention under § 1334(c), be it mandatory or discretionary, has no application in the context of a removed action.\" In re Branded Products, Inc., 154 B.R. 936 (Bankr.W.D.Tex.1993) (reasoning that once" }, { "docid": "18023679", "title": "", "text": "from abstaining. The Debtor notes that the Bankruptcy Court for the Southern District of New York has held that a similar clause functioned as a waiver of a party’s right to mandatory abstention: Defendant’s contention that this Court should abstain from hearing and determining this adversary proceeding under either subsection of 28 U.S.C. § 1334(c) is confounded by the corporate parties’ agreement... “that all actions and proceedings relating to the interpretation, enforcement or breach of this agreement shall be litigated in the United States Bankruptcy Court for the Southern District of New York, White Plains Division.” This provision constitutes a waiver by the corporate defendants of any right to mandatory abstention. There can be no doubt that subsection (2) can be waived by any party, since it is a matter of choice whether or not to file a timely motion. In re AHT Corp., 265 B.R. 379, 387 (Bankr.S.D.N.Y.2001) (footnote omitted). Accordingly, the Debtor argues that Orica waived its right to seek abstention by assenting to the Agreement and its forum selection clause. However, Orica argues that the AHT case dealt only with mandatory abstention and there is no authority suggesting that Orica waived its right to obtain permissive abstention by assenting to the Agreement. Permissive abstention is governed by section 1334(c)(1) of title 28. It permits permissive abstention at the Court’s discretion. It does not require a motion and can be raised by a court sua sponte. Therefore, we conclude that although Orica waived its right to seek per missive abstention, this waiver does not prevent the Court from granting such relief. For the reasons stated above, we will exercise our discretion under section 1334(c)(1) and abstain from hearing this action. D. Post-confirmation Jurisdiction There is an additional reason we choose to abstain from considering this dispute. The Debtor asserts we have subject matter jurisdiction over this case. In its Reply, Orica disagrees. The Third Circuit has recently addressed the jurisdiction of a bankruptcy court to hear an action commenced after confirmation of a plan of reorganization. See, e.g., In re Resorts Int’l, Inc., 372 F.3d 154, 168 (3d" } ]

[ { "docid": "22268128", "title": "", "text": "HANSEN, Circuit Judge. Darius Moss appeals from the district court’s denial of his initial motion pursuant to 28 U.S.C. § 2255 to set aside his sentence. Moss argues his 360-month sentence for drug law violations was imposed in violation of the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because drug quantity was not charged in his indictment or submitted to the jury during trial. Because we conclude Moss is foreclosed from collaterally attacking his sentence based on Apprendi, we affirm the judgment of the district court. I. Moss was convicted in September 1996 of one count of conspiracy to possess with intent to distribute crack cocaine and one count of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. At Moss’s sentencing hearing in July 1997, the district court found by a preponderance of the evidence that Moss was responsible for 1,644.3 grams of crack cocaine, which supported a combined base offense level of 38. The district court added two levels for obstruction of justice, see USSG § 3C1.1 (1995), and two levels for recklessly creating a substantial risk of death or serious bodily injury to another in the course of fleeing from a law enforcement officer, see id. § 3C1.2. Moss’s combined adjusted offense level of 42 and a criminal history category III resulted in a sentencing range of 360 months to life. The district court sentenced Moss at the bottom end of the range, imposing concurrent terms of 360 months on the conspiracy count and 240 months on the distribution count. Moss’s conviction and sentence was affirmed on direct appeal, see United States v. Moss, 138 F.3d 742 (8th Cir.1998), and Moss then filed the present § 2255 motion, which the district court denied. This court subsequently granted Moss a certificate of appealability on the issue of whether Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), applies to 21 U.S.C. § 841. The Supreme Court held in Jones that serious bodily injury under the federal" } ]

[ { "docid": "21748032", "title": "", "text": "during which the district court made findings regarding the quantities of cocaine and cocaine base attributable to each defendant, the court sentenced Roberts to 10 life sentences and two 360 month sentences, all to run concurrently; Covington to 11 life sentences, eight 360 month sentences, and one 240 month sentence, all to run concurrently; Gumbs to two 151 month sentences and three 120 month sentences, all to run concurrently; and Santos to four 360 month sentences, all to run concurrently. From the entry of judgments, these four defendants timely appealed. II For their most significant argument on appeal, the defendants contend that, under the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), they were entitled to have drug quantities determined by the jury under the reasonable-doubt standard, instead of by the court at a sentencing hearing under the preponderance standard. In Apprendi, the Supreme Court held that,”[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” 120 S.Ct. at 2362-63. The defendants contend that unless the jury finds actual drug quantities to justify greater sentencing máximums, the statutory maximum term of imprisonment for each count of conviction under 21 U.S.C. § 841 and 21 U.S.C. § 960 is 20 years. See 21 U.S.C. §§ 841(b)(1)(C), 960(b)(3). Thus, they argue that in the absence of a jury finding as to quantities, any sentence imposed under § 841 and § 960, through the corresponding conspiracy statutes, § 846 and § 963, that exceeds 20 years runs afoul of the Apprendi holding. Because the defendants did not raise the Apprendi objection below, we review their claims for plain error. See United States v. Kinter, 235 F.3d 192, 199 (4th Cir.2000). Under this standard of review, the defendants must establish an error that was plain and that affected their substantial rights. See Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v." }, { "docid": "1627136", "title": "", "text": "McMILLIAN, Circuit Judge. Cordell Ray Simms appeals from a judgment of the district court entered upon a jury verdict finding him guilty of conspiracy to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a) and 846. On appeal, Simms challenges the imposition of a 262-month sentence. We affirm. We first address Simms’s argument that the sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (Apprendi). In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. As Simms concedes, 21 U.S.C. § 841(b) imposes a maximum sentence of life imprisonment for convictions involving a conspiracy to distribute 50 grams or more of crack cocaine. Because Simms’s sentence is less than the statutory maximum, there is no Apprendi violation. See United States v. Hollingsworth, 257 F.3d 871, 875 (8th Cir.2001), cert. denied, — U.S. —, 122 S.Ct. 856, 151 L.Ed.2d 732 (2002) (Hollingsworth). Moreover, we note that “[t]he jury need not make an exact drug quantity finding to satisfy Apprendi.” Id. at 878. As here, a jury “need only make findings regarding ranges of quantities relevant to the varying statutory máximums under 21 U.S.C. § 841.” Id. Simms also argues that the district court erred in imposing a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. “We review a district court’s factual findings in support of an obstruction of justice enhancement for clear error and its application of the sentencing guidelines to the facts de novo.” United States v. O’Dell, 204 F.3d 829, 836 (8th Cir.2000). Although § 3C1.1 is not intended to punish a defendant for testifying, “[a] defendant who commits perjury is subject to this enhancement.” Id. “A defendant commits perjury, if under oath, ‘[he or] she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion," }, { "docid": "22447800", "title": "", "text": "defendant. Because the government has satisfied this requirement with respect to Harmon and Tuinei, we need not address the sufficiency of the evidence connecting Carbajal to Walker’s death. . Carbajal also contends that the sentencing enhancement based on his prior conviction and the enhancement based on the heroin-related deaths are elements of an aggravated offense that must be submitted to the jury and proven beyond a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The government argues that Carbajal affirmatively waived these arguments by adopting his co-defendants' pre-trial motion—which was granted by the district court.—to redact from the indictment and to withhold from the jury any evidence of the three heroin-related deaths. After reviewing the record, however, we find it clear that Carbajal did not join his co-defendants' motion and expressly preserved his arguments under Apprendi. In any event, Carbajal concedes that these arguments are foreclosed by precedent because his sentence fell within the range authorized by the statute of conviction. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (\"Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”); 21 U.S.C. § 841(b)(1)(A). . As Carbajal concedes, the appellants forfeited this argument by failing to raise it at the sentencing hearing. See United States v. Olano, 507 U.S. 725, 730-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We therefore have discretion to reverse the district court's ruling only if they can demonstrate plain error. See id. at 733, 113 S.Ct 1770; Fed.R.Crim.P. 52(b). . Cooper, 966 F.2d at 940-41; see Edwards v. United States, 523 U.S. 511, 515, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998) (noting that a sentence imposed based on a multiple-object conspiracy after an ambiguous general jury verdict cannot exceed the statutory maximum for a conspiracy involving only one drug). . Carbajal responds that his motion for judgment of acquittal at the close of the government’s case was sufficient to raise an issue" }, { "docid": "11883307", "title": "", "text": "21 U.S.C. § 841(b)(1)(A) prescribes mandatory sentences for “a violation” — including a conspiracy' — '“involving” certain threshold amounts of drugs. Id. Accordingly, the quantity instructions here did not improperly lead the jury to convict Robinson for the substantive acts of his co-conspirators. Similarly unavailing is Robinson’s suggestion that the quantity instructions violated the rule articulated by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Under Apprendi, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. Here, the “fact” that increases the default penalty for a conspiracy to distribute drugs is the quantity of drugs involved in the conspiracy. The First Circuit has noted that Ap-prendi did not overrule the Supreme Court’s earlier decision that as long as (1) the jury finds beyond a reasonable doubt that a defendant participated in a conspiracy, and (2) the Court sentences him within the statutory maximum applicable to that conspiracy, the court may “determine both the amount and the kind of ‘controlled substances’ for which [the] defendant should be held accountable — and then ... impose a sentence that varies depending upon amount and kind.” Derman v. United States, 298 F.3d 34, 42 (1st Cir.2002) (quoting Edwards v. United States, 523 U.S. 511, 513-14, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998)) (emphasis in original). The jury need only determine that the defendant participated in a conspiracy involving “a type and quantity of drugs sufficient to justify a sentence above the default statutory maximum.” Id. at 43. Most other circuits have agreed that Apprendi is satisfied where the jury finds, beyond a reasonable doubt, the quantity of drugs involved in the conspiracy as a whole under 21 U.S.C. § 841(b)(1)(A). See United States v. Phillips, 349 F.3d 138, 142-43 (3rd Cir.2003), vacated and remanded on other grounds sub nom. Barbour v. United States, 543 U.S. 1102, 125 S.Ct. 992, 160 L.Ed.2d 1012 (2005)," }, { "docid": "16544099", "title": "", "text": "reliability and not nebulous eyeballing.” United States v. Durham, 211 F.3d 437, 444 (7th Cir.2000). The methodology employed by the district court did not run afoul of this reliability requirement. 3. Finally, relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Mr. Brumfield contends that, in conducting its relevant conduct inquiry, the district court erred in holding him accountable for drug quantities that were not submitted to a jury and proved beyond a reasonable doubt. However, as Mr. Brumfield candidly acknowledges, our well-settled interpretation of Apprendi forecloses this argument in his case. We have repeatedly stated that, so long as the defendant’s sentence does not exceed the statutory maximum prescribed by the statute of conviction, “Apprendi does not create [for the defendant] a right to jury determination of the drug quantity.” United States v. Parker, 245 F.3d 974, 977 (7th Cir.2001); Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir.2000); cf. Harris v. United States, — U.S. -, 122 S.Ct. 2406, 2418, 153 L.Ed.2d 524 (2002) (“Yet once the jury finds all those facts [charged in the indictment], Appren-di says that the defendant has been convicted of the crime; the Fifth and Sixth Amendments have been observed; and the Government has been authorized to impose any sentence below the maximum.”); United States v. Watts, 256 F.3d 630, 634-35 (7th Cir.2001) (rejecting applicability of Apprendi to mandatory minimum sentences). Simply put, “Apprendi does not affect application of the relevant-conduct rules under the Sentencing Guidelines to sentences that fall within a statutory cap.” Talbott, 226 F.3d at 869. In this case, Mr. Brumfield acknowledges that his sentence of 137 months of imprisonment falls well below the statutory maximum prescribed in 21 U.S.C. § 841. Accordingly, we must reject his contention that this sentence violates the mandates of Apprendi. C. Mr. Pena’s Sentence Mr. Pena submits that the district court erred in declining to grant his motion for a minor or minimal role reduction pursuant to U.S.S.G. § 3B1.2. Under this guideline provision, a district court may reduce a defendant’s base offense level provided that the" }, { "docid": "23394628", "title": "", "text": "before the government can seek an increase in the statutory mandatory maximum or minimum sentence ” (emphasis added)). The Guidelines enhancements applied by the District Court had no effect on the statutory maximum or minimum sentence applicable to Mr. Hall. As such, the § 851 information was not required. B. The Drug Quantity Mr. Hall raises two challenges to the use of drug quantity to enhance his sentence. He first contends that he should have been sentenced under 21 U.S.C. .§ 841(b)(1)(C), rather than 21 U.S.C. § 841(b)(1)(A), because he claims the indictment failed to specify the drug amount involved in the crime. Indeed, we have held that “[a] district court may not impose a sentence in excess of the maximum set forth in 21 U.S.C. § 841(b)(1)(C)[,] [which is twenty years,] unless the benchmark quantity of cocaine base for an enhanced penalty is alleged in the indictment in addition to being submitted to the jury and proven beyond a reasonable doubt.” United States v. Jackson, 240 F.3d 1245, 1248 (10th Cir.2001), overruled on other grounds by United States v. Prentiss, 256 F.3d 971, 981 (10th Cir.2001). Contrary to Mr. Hall’s assertions, however, the indictment did specify the amount of drugs involved in the conspiracy. Count One of the second superceding indictment charged Mr. Hall with conspiring to distribute and to possess with intent to distribute “a mixture and substances containing a detectable amount of cocaine base ... weighing more than fifty grams.” And, in fact, the jury specifically found that the amount of crack-cocaine involved in the conspiracy count was “50 grams or more.” As such, Mr. Hall’s argument has no merit. He next contends that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the relevant quantity of drugs for sentencing purposes is no more than the quantity the jury found him to possess beyond a reasonable doubt — that is, 50 grams. This" }, { "docid": "6895422", "title": "", "text": "PER CURIAM: Thomas Charles Brown appeals from the district court’s denial of his initial petition for relief under 28 U.S.C. § 2255. Brown argues that his sentence should be vacated because of the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We hold that the new rule of criminal procedure announced in Apprendi does not apply retroactively on initial collateral review and affirm the district court’s dismissal of Brown’s habeas petition. I. Thomas Charles Brown was charged by indictment on July 29, 1993, with conspiracy to possess with the intent to distribute “1,000 kilograms or more of marihuana” in violation of 21 U.S.C. § 841(a)(1). Brown pleaded “not guilty” and was tried by a jury- The jury was charged in pertinent part as follows: In the Indictment, it is alleged that a particular amount of quantity of drugs was involved. The evidence in the case need not establish that the amount or quantity of drugs was as alleged in the indictment, but only that a measurable amount of drugs was in fact the subject of the acts charged in the indictment. Brown objected to that instruction insofar as the jury was precluded from finding the actual amount of marijuana alleged in the conspiracy. The objection was overruled, and the jury found Brown guilty. On October 26, 1994, the district court sentenced Brown to 216 months’ imprisonment, five years’ supervised release, and a $50 special assessment. Brown appealed his conviction and sentence arguing that the district court erred in so charging the jury, because drug quantity constituted an element of the offense which the jury was required to find beyond a reasonable doubt. See United States v. Castillo, 77 F.3d 1480, 1495-96 (5th Cir.1996). This court held that the jury was properly instructed and affirmed Brown’s conviction. Id. at 1496,1500. On April 22, 1997, Brown filed a § 2255 motion and after the Supreme Court decided Apprendi in 2000, sought leave to amend to include the argument that his sentence was constitutionally defective under Apprendi based on the erroneous jury instruction. The" }, { "docid": "22100680", "title": "", "text": "the range for his offense level. This sentence is below the statutory maximum for the offense. Alvarez claims that the district court’s determination of quantity increased the statutory maximum penalty to which Alvarez was exposed in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This argument is wholly without merit. Apprendi held that other than a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Id. at 490, 120 S.Ct. 2348. Ap-prendi also stated that “ '[i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.’ ” Id. (quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (Stevens, J., concurring)). But here the trial court’s determination of quantity did not increase the penalty to which Alvarez was exposed beyond the prescribed statutory maximum. As discussed, the statutory maximum for conspiracy to possess with intent to distribute more than five kilograms of cocaine is life. Without a jury determination of quantity, the maximum is 240 months (20 years) under § 841(b)(1)(C). Alvarez was sentenced to the minimum sentence allowed under the sentencing guidelines for his offense level of 36, 188 months, which falls below the statutory maximum authorized by the jury’s verdict. Defendant is not entitled to relief under Apprendi. See, e.g., United States v. Buckland, 289 F.3d 558, 562 (9th Cir.) (en banc) (rejecting facial challenge to 21 U.S.C. § 841, which does not specify who shall determine drug quantity or identify the appropriate burden of proof), cert. denied, 535 U.S. 1105, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002); United States v. Romero, 282 F.3d 683, 690 (9th Cir.) (rejecting Apprendi challenge to district judge’s determination of drug quantity because the resulting sentence did not exceed the maximum sentence authorized by the jury’s verdict), cert. denied, 537 U.S. 858, 123 S.Ct. 228, 154 L.Ed.2d 96 (2002); United States" }, { "docid": "6020882", "title": "", "text": "BEAM, Circuit Judge. Defendant Bobby Dion Woods was convicted by a jury of conspiracy to distribute, and to possess with intent to distribute, over fifty grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and of possession with intent to distribute over fifty grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). The jury acquitted Woods of three other drug counts. In addition to the drug amounts for which Woods was convicted, the district court attributed to him, under a preponderance of the evidence standard, amounts associated with counts on which he was acquitted. He was sentenced under 21 U.S.C. § 841(b)(1)(A) to 210 months’ imprisonment on each conviction, to be served concurrently. Woods appeals his conviction and sentence, challenging the constitutionality of the statute under which he was convicted because it does not require the government to prove drug amount as an element of the offense and thereby violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and because the statute denies equal protection by punishing crack cocaine offenses more severely than offenses involving other forms of cocaine. He further contends that he was denied effective assistance of trial counsel and that his conviction was based on insufficient evidence. We find Woods’ arguments to be without merit and affirm. In Apprendi, the Supreme Court held that any fact other than a prior conviction that increases a penalty for a crime beyond the prescribed statutory maximum must be charged and proven beyond a reasonable doubt. 530 U.S. at 490, 120 S.Ct. 2348. We have found that Apprendi is satisfied where the indictment alleged drug quantity, the jury made a finding of drug quantity, and the district court sentenced the defendant consistent with that finding. United States v. Sheppard, 219 F.3d 766, 769 (8th Cir.2000), cert, denied, — U.S. —, 121 S.Ct. 1208, 149 L.Ed.2d 121 (2001). Sentences not exceeding the statutorily authorized range do not violate Apprendi. United States v. Aguayo-Delgado, 220 F.3d 926, 934 (8th Cir.), cert. denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L.Ed.2d 513" }, { "docid": "3277852", "title": "", "text": "and sentence on the ground that it is in violation of the Constitution or United States law, was imposed without jurisdiction, exceeds the maximum penalty, or is otherwise subject to collateral attack. 28 U.S.C. § 2255. Petitioner argues that his conviction and sentence are unconstitutional due to the recent decision of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Supreme Court there held that other than a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. Based on Apprendi, Petitioner also argues that the United States Sentencing Guidelines are unconstitutional. The remaining two grounds in support of the motion are that Petitioner received ineffective assistance of counsel and the undersigned erred by enhancing Petitioner’s sentence due to his leadership role in the offense. III. DISCUSSION The Court first addresses the impact of Apprendi on Petitioner’s conviction and sentence. The bill of indictment charged the Petitioner with conspiring to manufacture and distribute cocaine base. The quantity of the drug involved in the conspiracy was not specified in the indictment; but, the bill of information alleged that in excess of 50 kilograms of base were involved. Based on the evidence at trial, the Probation Officer found that 602.3 grams of cocaine base and 93.7 kilograms of cocaine powder should be attributed to the Petitioner. Presentence Report, prepared October 14, 1997. Because of the amount of cocaine base attributed to the Petitioner, he faced a mandatory minimum sentence of not less than 10 years or more than life imprisonment. 21 U.S.C. § 841(b)(l)(A)(iii). As previously noted, the undersigned sentenced Petitioner to serve 384 months incarceration. This sentence was based on a finding by the Court from the preponderance of the evidence presented during the trial that the Petitioner knew or could reasonably foresee the drug quantities involved in the conspiracy as indicated by the probation officer. However, under the reasoning of Apprendi, the sentencing court may no longer make a finding of drug quantities by a preponderance" }, { "docid": "13113", "title": "", "text": "PER CURIAM. A jury convicted Robert A. Pollard of conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Based on the district court’s drug quantity finding, the district court was required to sentence Pollard to imprisonment for five to forty years, and to supervised release for at least four years. See id. § 841(b)(1)(B). Without the drug quantity finding, Pollard would have faced up to twenty years in prison and at least three years of supervised release. See id. § 841(b)(1)(C). The district court sentenced Pollard to eighty-seven months in prison and five years of supervised release. Because the indictment, jury instructions, and verdict form did not specify a drug quantity, Pollard contends his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (other than the fact of an earlier conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt). We disagree. Pollard’s prison sentence is less than the twenty-year statutory maximum allowable for conspiracy to distribute methamphetamine regardless of drug quantity in 21 U.S.C. § 841(b)(1)(C). Thus, Pollard’s contention is foreclosed by our decision in United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir.), cert. denied, — U.S. -, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000), where we held sentences “within the statutory range authorized by § 841(b)(1)(C) without reference to drug quantity are permissible under Apprendi ... even where the drug quantity was not charged in the indictment or found by the jury ... beyond a reasonable doubt.” Id. at 934. Likewise, Pollard’s five-year term of supervised release does not exceed the life term authorized under § 841(b)(1)(C), and thus does not violate Apprendi. See Aguayo-Delgado, 220 F.3d at 933; United States v. Scott, 243 F.3d 1103, 1108 (8th Cir.2001). Pollard contends Aguayo-Del-gado was wrongly decided, but one panel of this court must follow the decision of an earlier panel until overturned by the court en banc. See United States v. Ortega, 150 F.3d 937, 947 (8th Cir.1998). Last, Pollard" }, { "docid": "21755721", "title": "", "text": "delivered to Robert Lohr through the gas station. The jury could reasonably infer that Vanessa Lohr was a part of the conspiracy from this evidence that she acted to advance its purposes. In light of the foregoing, we conclude that the jury’s verdicts with respect to the drug charges were amply supported by the evidence. 2. Sentencing Considerations Sherman, Diaz, and Robert Lohr contend that, because the district, court relied on drug quantities it determined using a preponderance of the evidence standard, they were sentenced in violation of the Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Diaz also challenges the district court’s determination that his sentence was subject to a role enhancement as an organizer or leader of a conspiracy involving more than five people. a. Apprendi Claims Under Apprendi, “any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348; see United States v. Chavez, 230 F.3d 1089, 1091 (8th Cir.2000). The use of a judicially determined drug quantity as a basis for sentencing, however, is permissible so long as the defendant’s sentence does not exceed the statutory maximum sentence available for an indeterminate quantity of the drug, the offense simpliciter. United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.), cert. denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000). None of the defendants raised an Apprendi argument before the district court, and therefore we review their claims for plain error. United States v. Brown, 203 F.3d 557, 558 (8th Cir.2000) (per curiam). When a defendant is convicted of multiple counts, however, a sentence assessed in violation of Apprendi does not necessarily constitute plain error because “[t]he [Federal Sentencing] Guidelines require a district court to run sentences from multiple counts consecutively, rather than concurrently, if the Guideline sentence exceeds the statutory maximum sentence for each count.” United States v. Sturgis, 238 F.3d 956, 960 (8th Cir.2001) petition for cert. filed, 70 U.S.L.W. 3239 (U.S." }, { "docid": "16925559", "title": "", "text": "sentencing judge was not the same judge who conducted Ca-sas’s trial. Casas first argues that his sentence violated the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the jury did not determine the drug quantity distributed by the conspiracy. See United States v. Perez-Ruiz, 353 F.3d 1, 14 (1st Cir.2003). He also argues Apprendi error because the jury made no findings with regard to the possession of a firearm in the conspiracy, Casas’s leadership role in the conspiracy, or his abuse of a position of trust. These arguments are without merit. Contrary to Casas’s assertion, the jury did make a specific drug quantity determination; the jury convicted Casas using a special verdict form on which it found that the conspiracy distributed 9,445 kilograms of cocaine. See id. at 15 (“The jury’s findings would be readily ascertainable if the court had required it to complete and return a special verdict form.”). As to the sentencing enhancements for firearms possession, leadership role, and abuse of a position of trust, Apprendi does not require that the jury make any determinations on these questions; the statutory maximum for Casas was life imprisonment. See 21 U.S.C. §§ 841(b)(1)(A), 846 (conspiracy involving at least five kilograms of cocaine triggers a maximum sentence of life imprisonment for all coconspirators). The additional enhancements do not implicate the rule of Apprendi. See United States v. Lopez-Lopez, 282 F.3d 1, 22 (1st Cir.2002) (“Apprendi’s prohibition applies only when the disputed fact enlarges the applicable statutory maximum and the defendant’s sentence exceeds the original maximum.” (internal quotations omitted)).” Casas, 356 F.3d at 125. In light of the above, Petitioner Casas is not entitled on collateral review to reliti-gate issues raised on direct appeal, absent an intervening change in the law. Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (holding that a § 2255 hearing is permitted on an issue previously addressed on direct appeal when there has been an intervening change in the law). Cf. Singleton v. United States, 26 F.3d 233, 240 (1st Cir.1993)" }, { "docid": "9677332", "title": "", "text": "only Peeler’s testimony as it regarded motive, opportunity, preparation, plan, knowledge, identity and absence of mistake — a procedural safeguard that we often have found to minimize the prejudicial effect of such evidence. See Williams, 216 F.3d at 615; United States v. Griffin, 194 F.3d 808, 821 (7th Cir.1999), cert. denied, 529 U.S. 1044, 120 S.Ct. 1546, 146 L.Ed.2d 358 (2000); United States v. Allison, 120 F.3d 71, 75 (7th Cir.1997). Therefore, the admission of Peeler’s testimony under Rule 404(b) was not an abuse of discretion. B. Mr. Williams also argues that his sentence was determined erroneously. He relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), in which the Supreme Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” We cannot accept Mr. Williams’ argument on the basis of existing circuit precedent. We have held that, when a defendant is sentenced to a term of imprisonment within the statutory maximum for the crime of which he was convicted, “Ap-prendi is beside the point.” Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir.2000). Here, Mr. Williams was convicted of possession with the intent to distribute a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a). Although the jury did not specifically find an amount of cocaine base (“crack”) attributable to him, the district court, in sentencing Mr. Williams to a term of 151 months in prison, relied on 21 U.S.C. § 841(b)(1)(A), which authorizes sentences of up to life imprisonment for offenses involving 50 grams or more of a substance containing cocaine base. Nevertheless, because the lowest statutory maximum sentence for any violation of § 841(a) is 20 years when a Schedule II controlled substance is involved, see 21 U.S.C. § 841(b)(1)(C), and Mr. Williams was sentenced to a term of 12 years and 7 months, his sentence was not improper in light of Apprendi. See id. at 869 (‘When a drug" }, { "docid": "22914270", "title": "", "text": "government’s contention that a jury could reasonably infer from Mr. Hishaw’s possession of marijuana on June 27, 1998, and his prior possession of cocaine that he “knowingly [held] ownership, dominion, or control over [the pistol].” Mills, 29 F.3d at 549. Accordingly, we conclude that the evidence presented to the jury was insufficient to support Mr. Hishaw’s § 922(g)(1) conviction. C. Determination of Drug Quantity Mr. Hishaw also argues that, by considering drug transactions of which he was not convicted, the district court erred in determining the quantity of drugs for which Mr. Hishaw could be held responsible in calculating his sentence. During the pendency of this appeal, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), a case which arguably affects the manner in which the district court may determine drug quantities. We asked for supplemental briefing on the applicability of that case. Invoking Apprendi, Mr. Hishaw now advances an additional argument. He asserted that the government failed to prove to the jury beyond a reasonable doubt a fact that affected his sentence: the quantity of cocaine that he possessed with the intent to distribute on July 10, 1998 (the offense alleged in count eight of the indictment). In light of Apprendi, Mr. Hishaw maintains that the government violated'his due process rights. We will first address Mr. Hishaw’s Apprendi argument. Because his other sentencing argument (regarding the use of drug quantities involved in transactions of which he was not convicted) affects our analysis of the Apprendi issue, we will address it in that context. In the district court proceedings, Mr. Hishaw did not challenge the evidence at to the quantity of cocaine he possessed on June 10, 1998. Accordingly, in assessing his Apprendi argument, we review the record for plain error. See Fed.R.Civ.P. 52. Reversal is only warranted if there is: (1) an error; (2) that is plain or obvious; (3) affects substantial rights; and (3) “seriously affeet[s] the fairness, integrity[,] or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508" }, { "docid": "6857422", "title": "", "text": "penalties under § 841 to those who conspire or attempt to commit an offense under § 841. See 21 U.S.C. § 846. It is well established that “[djrug quantity is not an element of a § 841 drug offense.” United States v. Smith, 308 F.3d 726, 740 (7th Cir.2002), see, e.g., United States v. Bjorkman, 270 F.3d 482, 490-91 (7th Cir.2001). Indeed, a jury need not make any finding of drug quantity for a conviction under § 841 to stand. Smith, 308 F.3d at 741. Thus, Patterson’s convictions for conspiracy and attempt under §§ 841 and 846 matched the charges for which he was indicted, notwithstanding the jury’s finding that the conspiracy and attempt involved more than 500 grams but less than five kilograms of cocaine, and the indictment charged a conspiracy and attempt involving approximately five kilograms of cocaine. Patterson also argues that his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the district court relied upon the base offense level under U.S. Sentencing Guidelines Manual § 2D1.1(c)(2002) for five kilograms of cocaine — the quantity of cocaine charged in the indictment — and not the lesser quantity found in the jury’s special verdict, in calculating his sentence. “Apprendi holds that ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt.’ ” United States v. Jones, 248 F.3d 671, 676 (7th Cir.2001) (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348). “However, a particular sentence does not implicate Ap-prendi ‘unless it exceeds a default statutory maximum.’ ” United States v. Johnson, 335 F.3d 589, 591 (7th Cir.2003) (quoting United States v. Knox, 301 F.3d 616, 620 (7th Cir.2002)). As Patterson was sentenced to two concurrent sentences of 235 months for the convictions under §§ 841 and 846, and the maximum sentence provided by § 841(b)(1)(c) is twenty years, or 240 months, his sentence does not violate Apprendi. Patterson urges this court to hold that the Apprendi" }, { "docid": "11160699", "title": "", "text": "PAUL KELLY, JR., Circuit Judge. Defendant Eric William Bly timely appeals from an order modifying his sentence on the government’s motion for reconsideration in this 28 U.S.C. § 2255 proceeding. See Fed. R.App. P. 4(a)(1), (4); Fed.R.Civ.P. 59(e); United States v. Emmons, 107 F.3d 762, 764 (10th Cir.1997) (applying civil trial and appellate rules to determine timeliness of notice of appeal from order disposing of Rule 59 motion in § 2255 proceeding). We remand for further proceedings. Following his conviction on numerous drug trafficking offenses, Bly was sen tenced to mandatory terms of life imprisonment based on both the quantity of drugs involved and his prior drug offenses, pursuant to 21 U.S.C. § 841(b)(1)(A) and § 851. On appeal, however, this court held that the government had failed to prove Bly was in fact the man convicted of the prior offenses and, therefore, we “vacate[d] Mr. Bly’s sentence and remand[ed] for resentencing de novo on this issue.” United States v. Green, 175 F.3d 822, 836 (10th Cir.1999). On remand, the district court heard additional evidence tying Bly to the prior offenses and reimposed the life sentences. We affirmed. United States v. Bly, No. 99-6287, 2000 WL 376628 (10th Cir. filed Apr. 13, 2000). In the meantime, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L,Ed.2d 435 (2000), and Bly commenced this § 2255 proceeding challenging his sentences because they rested on court-found facts which, under Apprendi must be determined by a jury. Lacking the authoritative guidance later provided by United States v. Mora, 293 F.3d 1213, 1219 (10th Cir.) (holding Apprendi does not apply retroactively to collateral proceedings), cert: denied, — U.S.-, 123 S.Ct. 388, 154 L.Ed.2d 315 (2002), the district court applied Apprendi and reduced Bly’s nine life sentences to the twenty-year statutory maximum for an unenhanced drug offense on each count, all to run concurrently. The government moved for reconsideration. The district court did not retract its application of Apprendi but did hold that, pursuant to United States Sentencing Guideline § 5G1.2(d) and this court’s decision in United States v. Price," }, { "docid": "16321935", "title": "", "text": "Opinion by Judge BROWNING; Dissent by Judge GOULD. OPINION BROWNING, Circuit Judge. Frederico Angel Villalobos pled guilty to one count of conspiracy to distribute heroin and stipulated that between 100-400 grams of heroin were involved. Before sentencing, Villalobos moved to withdraw his plea, arguing that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) had changed the government’s burden of proof as to drug quantity and that his pre-Apprendi plea was not knowing, intelligent and voluntary. The district court denied the motion and sentenced Villalobos to 60 months. He appeals. We reverse and remand. 1. Facts and Procedural History Villalobos was indicted on two counts of violating drug laws. Count one charged conspiracy to distribute heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. Count two alleged possession of heroin with intent to distribute in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2. The indictment alleged that each count involved one kilogram or more of heroin. The plea agreement and plea colloquy focused only on count 1, charging conspiracy to distribute heroin under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, and specified that the government would have the burden of proving two elements beyond a reasonable doubt: (1) that there was an agreement between two or more persons to distribute heroin during the relevant time period; (2) that Villalobos became a member of the conspiracy knowing of its object and intending to help accomplish it. Villalobos pled guilty to count 1 and stipulated in his plea agreement that the amount of heroin involved was at least 100 grams but less than 400 grams. Before Villalobos’ sentencing, the U.S. Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Villa-lobos moved to withdraw his plea, arguing that 21 U.S.C. § 841 was unconstitutional and that Apprendi’s change in" }, { "docid": "22866071", "title": "", "text": "quantity calculations in the PSI. At sentencing on May 27, 1998, Varela maintained his objection to the drug quantity. The district court overruled Varela’s objection to the drug quantity and sentenced Varela to 235 months’ imprisonment. Varela timely appealed, raising arguments related only to his conviction. On January 13, 2000, this Court affirmed Varela’s conviction. United States v. Rodriguez, No. 98-3161, at *19, 2000 WL 64283 (Jan. 13, 2000). Varela filed a Petition for Writ of Certiorari before the United States Supreme Court, which was denied on May 15, 2000. Varela v. United States, 529 U.S. 1122, 120 S.Ct. 1992, 146 L.Ed.2d 817 (2000). On May 10, 2001, Varela filed the instant counseled § 2255 motion, raising two grounds for relief. In his first ground for relief, Varela argued that pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court wrongly determined his base offense level based on a drug quantity neither alleged in the indictment nor proved to a jury beyond a reasonable doubt. In a supporting memorandum, Varela argued that his offense level of 38 was based on 150 kilograms of cocaine, when the indictment alleged only that he possessed 5 or more kilograms 'without specifying the precise quantity. In his second ground for relief, Varela argued that his conviction was obtained by evidence that was from illegal police activity. On March 9, 2004, the district court denied Varela’s § 2255 motion. As to Varela’s Apprendi claim, the district court concluded that Apprendi does not apply retroactively to cases on collateral review. The district court further determined that Apprendi had no effect on Varela because his 235-month sentence did not exceed the 20-year (240-month) statutory maximum. As to Varela’s second ground for relief, the district court concluded that the claim regarding illegal police activity was unsupported and also procedurally barred. After the district court denied Varela’s § 2255 motion, the Supreme Court decided Blakely on June 24, 2004. Blakely extended the rule in Apprendi and concluded that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge" }, { "docid": "16351642", "title": "", "text": "PER CURIAM. A jury found Dietrick Lavon Banks and his codefendants guilty of conspiring to distribute and possess with intent to distribute crack cocaine, in violation of 21 U.S.C. § 846 (1994), and he was sentenced to life imprisonment and ten years supervised release. We affirmed his conviction, but vacated his sentence based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and remanded “with directions to resentence each defendant to a 30-year term of imprisonment.” See United States v. Maynie, 257 F.3d 908, 918-21 (8th Cir.2001), cert. denied, 534 U.S. 1151, 122 S.Ct. 1117, 151 L.Ed.2d 1010, and cert. denied, 535 U.S. 944, 122 S.Ct. 1333, 152 L.Ed.2d 238 (2002). On remand, the district court sentenced Banks to thirty years imprisonment and ten years supervised release. On appeal, counsel moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that the district court erred in finding it lacked discretion to deviate from the sentence ordered by this court, and that Banks was denied due process because the jury did not make a finding as to the specific drug involved in his offense. In his pro se supplemental briefs, Banks argues that his sentence violates Apprendi because the district court made drug quantity findings, Apprendi should be extended to preclude any drug-quantity increases to his Guidelines base offense level, and this court’s directions to the district court in Maynie were clearly erroneous and resulted in a manifest injustice because they were based on the dis trict court’s previous drug quantity findings. We affirm. The district court correctly found that it was bound by our mandate to sentence Banks to thirty years imprisonment. See United States v. Bartsh, 69 F.3d 864, 866 (8th Cir.1995). Banks’s remaining arguments are precluded because they raise or are essentially based on arguments he did not bring in his prior appeal, see United States v. Stuckey, 255 F.3d 528, 531 (8th Cir.), cert. denied, 534 U.S. 1011, 122 S.Ct. 498, 151 L.Ed.2d 409 (2001), and because the drug" } ]

[ { "docid": "11121271", "title": "", "text": "an order dismissing that complaint as to them on the ground that it failed to state a claim upon which relief could be granted. The district judge treated that motion as a motion for summary judgment, under Rule 12(b), Fed. R.Civ.P., 28 U.S.C.A., heard arguments based on the pleadings and affidavits submitted by the parties, and filed an opinion and order entering judgment in favor of the sureties. U. S. v. Crosland Construction Co., Inc., D.C., 120 F.Supp. 792. From that order and judgment the Government has appealed, but is pressing only the question stated above. The parties do not contend that the language of the bond is extended or limited by any contract provision or statute. The question is simply whether the Government’s claim is covered by the terms of the bond, quoted above. The relevant statutes and regulations are set out in the note below. From a consideration of all of them, we conclude, as did the majority of the Tenth Circuit in United States Fidelity & Guaranty Co. v. U. S., 201 F.2d 118: “ * * * that when an employer withholds the tax from an employee’s wage and pays him the balance the employee has been paid in full. He has received his full wage. Part of it has gone to pay his withholding tax and the balance he has. The employer has discharged his contrae-tual obligation to pay the full wage. Thereafter there remains only his liability for the tax which he has collected. That is a tax liability for which he alone is liable to the Government as for any other taxes which he may owe.” 201 F.2d at page 120. That decision was adhered to by the Tenth Circuit in U. S. v. Zschach Construction Co., 209 F.2d 347, and followed by the Ninth Circuit in Westover v. William Simpson Construction Co., 209 F.2d 908 and Fireman’s Fund Indemnity Co. v. U. S., 210 F.2d 472, and by the Fifth Circuit in General Casualty Co. of America v. U. S., 205 F.2d 753. It is supported by Central Bank v. U. S.," } ]

[ { "docid": "12449287", "title": "", "text": "after demand, the amount (including any in'terest, penalty, additional amount, or addition to such tax, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.” I.R.C. Sec. 3670, 26 U.S.C.(1946 Ed.) Sec. 3670, 26 U.S.O.A. § 3670. . R.S. § 3466, 31 U.S.C.A. § 191. “Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; ■* * . Brown v. General Laundry Service, 139 Conn. 363, 94 A.2d 10. . If such, liens are not paid or reduced to judgment within, a certain period of time they are automatically lost. Then, too, there is always the question of proof. . District Court cases: (1) In re Caswell Construction. Co., Inc., D.C., 13 F.2d 667; (2) New York Casualty Co. v. Zwerner, D.C., 58 F.Supp. 473; (3) American Fidelity Co. v. Delaney, D.C., 114 F.Supp. 702; Circuit Court cases: (4) Glenn v. American Surety Co., 6 Cir., 160 F.2d 977; (5) U. S. Fidelity & Guaranty Co. v. U. S., 10 Cir., 201 F.2d 118; (6) General Casualty Co. of America v. U. S., 5 Cir., 205 F.2d 753." }, { "docid": "12449222", "title": "", "text": "Cir., 201 F.2d 118. See, American Fidelity Co. v. Delaney, D.C.Vt., 114 F.Supp. 702; New York Casualty Co. v. Zwerner, D.C. Ill., 58 F.Supp. 473; Westover v. William Simpson Construction Co., 9 Cir., 209 F.2d 908. Sums withheld by the taxpayer from the wages of its employees do not constitute “wages” within the terms of a surety’s bond for wages. United States Fidelity & Guaranty Co. v. United States, supra; United States v. Zschach Const. Co., D.C.Okl., 110 F.Supp. 551 (holding that a surety’s bond is to indemnify the owner and not the United States for taxes). The sums retained by the hospital and assigned by the taxpayer to the sureties were for payment of materialmen and sub-contractors and no part of this sum was used to pay wages of employees of the taxpayer. But even if the sureties had paid wages owing to the employees of the taxpayer, the sureties still would not be liable for the taxes in this case. See, United States Fidelity & Guaranty Co. v. United States, supra; American Fidelity Co. v. Delaney, supra; Westover v. William Simpson Construction Co., supra. It follows that the sureties are not liable on their bond for the taxpayer’s unpaid taxes arising from the hospital contract. Accordingly, It is ordered, that the defendants Pacific Employers Insurance Company and American Indemnity Company, sureties, have judgment entered in their favor, and It is so ordered." }, { "docid": "4758564", "title": "", "text": "withheld fund by setoff but, just as the opinion said, upon unwillingness to “apply law relating to security to unappropriated sums which exist only aS a claim.” Even though the transactions involved in the case at bar took place in New York the Triborough case is not controlling authority. The question of priorities where federal tax liens are concerned is one of federal law. United States v. Kings County Iron Works, Inc., 2 Cir., 224 F.2d 232, 235, supra. Since there is thus no theory on which the surety in this case can be held to have a property interest in the withheld funds there is no occasion for discussing priorities. All the Government tax liens are superior to the claims of the surety, even those liens which accrued after payment of the laborers and materialmen by the surety. The State of New York as well as the Government seeks to assert tax liens in this case but, since they are admittedly subordinate to federal liens and the federal liens exceed in amount the withheld funds, there is nothing for the State. Judgment will be rendered for the Government. The foregoing opinion is intended to embody conclusions of law. Since the case was tried upon an agreed statement of facts no findings would seem to be necessary. If any are desired proposed findings may be submitted. . Glenn v. American Surety Co., 6 Cir., 160 F.2d 977; United States Fidelity & Guaranty Co. v. United States, 10 Cir., 201 F.2d 118; United States v. Zschach Const. Co., 10 Cir., 209 F.2d 347; New York Casualty Co. v. Zwerner, D.C.N.D.Ill.E.D., 58 F.Supp. 473; F. H. McGraw & Co. v. Sherman Plastering Co., D.C.D.Conn., 60 F.Supp. 504; America Fidelity Co. v. Delaney, D.C.D.Vt., 114 F.Supp. 702; Great American Indemnity Co. v. United States, D.C.W.D.La.Alex.Div., 120 F.Supp. 445; Alabama-Tennessee Nat. Gas Co. v. Lehman-Hoge & Scott, D.C.N.D.Ala.N.W.Div., 122 F.Supp. 314; U. S. Fidelity & Guaranty Co. v. Triborough Bridge Auth., 297 N.Y. 31, 74 N.E. 2d 226." }, { "docid": "12449217", "title": "", "text": "Casualty Co. v. Dulaney Lumber Co., 5 Cir., 23 F.2d 378, 380; Fidelity & Deposit Co. of Maryland v. Union State Bank, D.C. Minn., 21 F.2d 102, 104; In re Van Winkle, D.C.Ky., 49 F.Supp. 711; United States Fidelity & Guaranty Co. v. John R. Alley & Co., D.C.Okl., 34 F.Supp. 604; Southern Surety Co. v. J. R. Holden Land & Lumber Co., 8 Cir., 14 F.2d 411, 413; American Fidelity Co. v. Delaney, D.C. Vt., 114 F.Supp. 702. It is superior to the Government’s lien for unpaid taxes. American Surety Co. of New York v. City of Louisville M. H. Comm., D.C.Ky., 63 F.Supp. 486, affirmed Glenn v. Ameri can Surety Co., 6 Cir., 160 F.2d 977; United States Fidelity & Guaranty Co. v. United States, 10 Cir., 201 F.2d 118; New York Casualty Co. v. Zwerner, D.C. Ill., 58 F.Supp. 473; American Fidelity Co. v. Delaney, D.C.Vt., 114 F.Supp. 702. The performance bond was executed on June 29, 1949; therefore, the sureties’ lien is superior to any lien arising thereafter, including the Government’s lien for taxes which dates from December 14, 1950. In addition to an equitable lien, the sureties have a written assignment of any funds remaining in the possession of the hospital under the provisions of the application for contract bond. Such a provision is valid and enforceable. Lacy v. Maryland Casualty Co., 4 Cir., 32 F.2d 48. Accordingly, the rights of the sureties to the funds remaining in the hands of the hospital were not determined solely by the assignment of January 5, 1952, but by the bond and application therefor (in view of the sureties’ performance under the bond) and by the sureties’ equitable lien. The Government’s rights to the funds in the hands of the hospital are no greater than the rights of the taxpayer. F. H. McGraw & Co. v. Sherman Plastering Co., D.C.Conn., 60 F.Supp. 504, affirmed, 2 Cir., 149 F.2d 301, certiorari denied 326 U.S. 753, 66 S.Ct. 92, 90 L.Ed. 452; United States Fidelity & Guaranty Co. v. United States, 10 Cir., 201 F.2d 118. Upon performance under its" }, { "docid": "12334853", "title": "", "text": "of “choateness,” I find that the assignment will pass the test. This was an assignment in substance as well as form, and is of greater dignity than a security arrangement or a lien. The Government has filed a cross claim against Surety, in which it claims that the Withholding and FICA taxes for the second, third and fourth quarters of 1960 are a portion of the cost of labor arising out of the three construction contracts, and that Surety should be required to pay such, costs of labor. There is no merit in this contention. The Fourth Circuit Court of Appeals has held that the contractor’s taxes are not payable under the bond. See / United States v. Crosland Construction Co., 4 Cir., 217 F.2d 275, in which the Court said: “We agree with the Fifth Circuit: ‘Though measured by the amount of wages, the money due the United States was owing as taxes and not as wages.’ General Casualty Co. of America v. United States, 205 F.2d at page 755.” To the same effect, see United States v. Phoenix Ind. Co., 4 Cir., 231 F.2d 573; United States Fidelity & Guaranty Co. v. United States, 10 Cir., 201 F.2d 118; and United States v. Seaboard Surety Co., N.D.Tex., 201 F.Supp. 630. The foregoing was written prior to the decision of the Supreme Court in Pearl-man v. Reliance Insurance Company, 83 S.Ct. 232. There the Supreme Court held that (even in the absence of any express assignment) the Surety, which paid labor and material bills incurred by a government contractor, had ownership of an equitable lien on, or a prior right to retained percentages from the date of execution of the bond and contract on the theory of subrogation alone. Thereafter Planing Mill and Surety amended their pleadings to assert right to the fund on the additional theory of subrogation. ' In Pearlman there was a dispute between Pearlman, as trustee in bankruptcy of Dutcher Construction Corporation (which in April, 1955, entered into a contract with the United States to do work on the St. Lawrence Seaway project) and the" }, { "docid": "12449218", "title": "", "text": "lien for taxes which dates from December 14, 1950. In addition to an equitable lien, the sureties have a written assignment of any funds remaining in the possession of the hospital under the provisions of the application for contract bond. Such a provision is valid and enforceable. Lacy v. Maryland Casualty Co., 4 Cir., 32 F.2d 48. Accordingly, the rights of the sureties to the funds remaining in the hands of the hospital were not determined solely by the assignment of January 5, 1952, but by the bond and application therefor (in view of the sureties’ performance under the bond) and by the sureties’ equitable lien. The Government’s rights to the funds in the hands of the hospital are no greater than the rights of the taxpayer. F. H. McGraw & Co. v. Sherman Plastering Co., D.C.Conn., 60 F.Supp. 504, affirmed, 2 Cir., 149 F.2d 301, certiorari denied 326 U.S. 753, 66 S.Ct. 92, 90 L.Ed. 452; United States Fidelity & Guaranty Co. v. United States, 10 Cir., 201 F.2d 118. Upon performance under its bond, a surety is subrogated to the rights of the obligee to any funds remaining in possession of the latter which were retained under the contract with the principal. Farmers’ Bank v. Hayes, 6 Cir., 58 F.2d 34; Lacy v. Maryland Casualty Co., supra. See, American Surety Co. of New York v. Bethlehem Bank, 314 U.S. 314, 62 S.Ct. 226, 86 L.Ed. 241; In re Baltimore Pearl Hominy Co., 4 Cir., 5 F.2d 553. The Government’s claim of priority over the sureties to the funds retained by the hospital is based on Section 191, 31 U.S.C.A., which gives the United States priority in payment of funds of an insolvent under certain conditions. It is claimed that the taxpayer was without sufficient assets to meet its obligations and was therefore insolvent at the time of the assignment of January 5, 1952. It is admitted by the taxpayer that it was without assets sufficient to meet its obligations some time prior to this assignment. In that sense the. taxpayer is and was insolvent. However, the taxpayer continued" }, { "docid": "6860940", "title": "", "text": "95 L.Ed. 53: “It is to be noted that both liens attached to property belonging to the defendant debtor, property that was his at all times. Such is not the case here. On the date of the execution of the subcontract the prime contractor had a specific right of ownership in any funds accruing to the subcontractor from the performance of his subcontract. The right to withhold these funds upon default was superior to any other claim against the fund as the property of the subcontractor. When the subcontractor defaulted and its surety, the appellant in this case performed it stepped,into the shoes of the prime contractor and was sub-rogated to all rights that it held against the subcontractor. Those rights related back to the date of the subcontract and were effective from the date thereof. This was in point of time prior to the perfection of the Government’s tax liens. Actually the defaulting subcontractor had no right to this fund. It owed the principal contractor more than was due to it from such principal contractor. As between the Government and appellant surety who stepped into the shoes of the principal contractor, the Government could acquire no greater right to this fund than the subcontractor had.” 201 F.2d 118, at pages 121-122. The surety’s claim to the withheld funds is a question entirely apart from the issue of priorities, of course. It rests upon the doctrine of equitable subrogation that where a surety performs under a performance bond after the default of the contractor, it is entitled to an equitable lien on funds previously withheld by reason of the contractor’s default, at least to the extent of the surety’s expenses. See Lacy v. Maryland Casualty Co., 4 Cir., 1929, 32 F.2d 48 (see especially the discussion on pages 51-53); Farmers’ Bank v. Hayes, 6 Cir., 1932, 58 F.2d 34; American Fidelity Co. v. Delaney, D.C.Vt.1953, 114 F.Supp. 702, at page 711; United States Fidelity & Guaranty Co. v. U. S., supra, 201 F.2d at page 122. It is to be noted that this equitable doctrine is additional to and distinct" }, { "docid": "4758562", "title": "", "text": "of redemption of the security it had furnished. When this equity was cut off nothing would remain to satisfy the liens. The argument runs head on, however, into recent authority. The court made it plain in United States v. Munsey Trust Co., 332 U.S. 234, 67 S.Ct. 1599, 91 L.Ed. 2022, supra, that the law relating to security cannot be applied to the unpaid balance in the hands of the owner. There the owner held a balance under a provision of the contract for the retention of 10% of the progress payments and the court, in answer to an argument such as above outlined said 332, U.S. at page 243, 67 S.Ct. at page 1603, “we are not prepared to apply law relating to security to unappropriated sums which exist only as a claim.” My view that the Government tax liens are superior to any interest of the surety is supported by only one case, Aetna Casualty & Surety Co. v. Horticultural Serv., Sup., 147 N.Y.S.2d 422, decided by Justice Hofstadter. On the other hand, plaintiff has cited many where the surety’s rights have prevailed. The opinions in all but one of them were either filed before the Munsey Trust case or failed to mention it. The opinion which mentioned it, U. S. Fidelity & Guaranty Co. v. Triborough Bridge Authority, 297 N.Y. 31, 74 N.E.2d 226, distinguishes it from a case like that at bar on the ground that in the Munsey Trust case the fund held by the owner was “necessarily reduced” by the debts owed to the owner by the contractor. I cannot accept the premise. Such a reduction is far from “necessary”. Indeed, if the owner in the Munsey Trust case had thus reduced the fund, it would, in effect, have paid out the 10% which was to be withheld under the terms of the agreement and, as a result, would even under the federal law have discharged the surety. Globe Indemnity Co. v. Southern Pac. Co., 2 Cir., 30 F.2d 580. Thus, the Munsey Trust case is not based on any “necessary” reduction of the" }, { "docid": "20953224", "title": "", "text": "Lane, 45 App. D.C. 176; Philadelphia National Bank v. McKinlay, 63 App.D.C. 296, 72 F.2d 89; Moran v. Guardian Casualty Co., 64 App. D.C. 188, 76 F.2d 438; and Pratt Lumber Co., Inc., v. T. H. Gill Co., D.C., 278 F. 783. But we are of opinion after examining all the authorities on the subject that the rule announced and applied in Schmoll, etc., v. United States, supra, that the surety does not acquire, such an equitable lien under its payment bond, is the correct rule. No case has been cited, and we have been unable to find one in which the Supreme Court has held that an equitable lien accrues in favor of laborers and materialmen or to a surety in the event he pays such claims on the balance due under a contract. Cf. Mankin v. United States for the Use of Ludowici-Celadon Co., 215 U.S. 533, 30 S.Ct. 174, 54 L.Ed. 315; Title Guaranty & Trust Co. of Scrantoh, Pennsylvania, v. Crane Co., 219 U.S. 24, 31 S.Ct. 140, 55 L.Ed. 72; United States v. Ansonia Brass & Copper Co., 218 U.S. 452, 31 S.Ct. 49, 54 L.Ed. 1107; Illinois Surety Co. v. United States to the use of Peeler, et al., 240 U.S. 214, 36 S.Ct. 321, 60 L.Ed. 609; United States Fidelity and Guaranty Co. v. United States, 209 U.S. 306, 28 S.Ct. 537, 52 L.Ed. 804; United States Fidelity & Guaranty Co. v. United States, 191 U.S. 416, 24 S.Ct. 142, 48 L.Ed. 242; American Surety Co. of New York v. Westinghouse Electric Mfg. Co. 296 U.S. 133, 138, 56 S.Ct. 9, 80 L.Ed. 105. As between laborers and materialmen or a surety on a payment bond, and general creditors, including the Government, of the defaulting contractor, the equity of such laborers and materialmen, or the surety, in the balance due under the contract, including the retained percentage, upon completion thereof, would be superior to the equity of such general creditors to such balance. However, we are of opinion that ■the Government’s statutory right of preference or priority for payment of debts due it" }, { "docid": "22916213", "title": "", "text": "surety, the appellant in this casé performed it stepped into the shoes of the prime contractor and was subrogated to all rights that it held against the subcontractor. Those rights related back to the date of the subcontract and were effective from the date thereof. This was in point of time prior to the perfection of the Government’s tax liens. Actually the defaulting subcontractor had no right to this fund. It owed the principal contractor more than was due to it from such principal contractor. As between the Government and appellant surety who stepped into the shoes of the principal contractor, the Government could acquire no greater right to this fund than' the subcontractor had. The judgment of the trial court is reversed and the cause is remanded to proceed in conformity with the views expressed herein. . 40 U.S.C.A. § 270a. . 20 U.S.C.A. § 35. . 'Ereasury Regulation 116 § 465-461. . In its conclusion of Law No. 2 the court stated that .“Under the terms of the subcontract, Kendrick Electric, Inc., was and is obligated to pay all wages due labor used in performance of such sub-contract and that the withholding taxes for which the United States makes claim are part of the wages due said labor, having been previously deducted and withheld by the employer, and that under the surety bond, on default by said employer Kendrick Electric Inc., the surety, plaintiff herein, became liable for the payment of such withholding taxes.” . United States v. New York, 315 U.S. 510, 316 U.S. 643, 62 S.Ct. 712, 86 L.Ed. 998. . Congressional Record. Volume 79, Page 13, 382. . Glenn v. American Surety Co., 6 Cir., 160 F.2d 977; New York Casualty Co. v. Zwerner, D.C., 58 F.Supp. 473; Farmers’ Bank v. Hayes, 6 Cir., 58 F.2d 34; Prairie State National Bank v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L. Ed. 412. PICKETT, Circuit Judge (dissenting). It seems to me that my colleagues take too narrow a view of the coverage intended by the terms of the performance and payment bond in this" }, { "docid": "12449221", "title": "", "text": "977; New York Casualty Co. v. Zwerner, D.C.Ill., 58 F.Supp. 473; United States v. Woodside, D.C.S.C., 34 F.Supp. 281. See also, United States v. Hooe, 3 Cranch 73, 2 L.Ed. 370, 375; Prince v. Bartlett, 8 Cranch 431, 12 U.S. 431, 434, 3 L.Ed. 614; Brent v. Bank of Washington, 10 Pet. 596, 611, 9 L.Ed. 547; Beaston v. The Farmers’ Bank of Delaware, 12 Pet. 102, 132, 9 L.Ed. 1017; and In re Baltimore Pearl Hominy Co., D.C.Md., 294 F. 921, reversed on other grounds, 4 Cir., 5 F.2d 553. This is not a proceeding involving the disposition of an insolvent’s estate; therefore, the “priority” statute has no application. Whether the sureties are liable on their bond for the taxpayer’s taxes resulting from performance of the hospital contract will now be determined. Taxes owed by the taxpayer are owed by virtue of law and not because of any contractual relationship. Central Bank v. United States, 345 U.S. 639, 73 S.Ct. 917, 97 L.Ed. 1312; United States Fidelity & Guaranty Co. v. United States, 10 Cir., 201 F.2d 118. See, American Fidelity Co. v. Delaney, D.C.Vt., 114 F.Supp. 702; New York Casualty Co. v. Zwerner, D.C. Ill., 58 F.Supp. 473; Westover v. William Simpson Construction Co., 9 Cir., 209 F.2d 908. Sums withheld by the taxpayer from the wages of its employees do not constitute “wages” within the terms of a surety’s bond for wages. United States Fidelity & Guaranty Co. v. United States, supra; United States v. Zschach Const. Co., D.C.Okl., 110 F.Supp. 551 (holding that a surety’s bond is to indemnify the owner and not the United States for taxes). The sums retained by the hospital and assigned by the taxpayer to the sureties were for payment of materialmen and sub-contractors and no part of this sum was used to pay wages of employees of the taxpayer. But even if the sureties had paid wages owing to the employees of the taxpayer, the sureties still would not be liable for the taxes in this case. See, United States Fidelity & Guaranty Co. v. United States, supra; American Fidelity" }, { "docid": "12449216", "title": "", "text": "of these unpaid material-men and sub-contractors under the terms of the performance bond. Upon the sureties’ performance under their bond obligation, they acquired an equitable lien against any sum remaining in the hands of the one for whose protection the bond was given. This lien relates back to the date of the contract and is superior to any lien arising thereafter. Prairie State Nat. Bank of Chicago v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412; Henningsen v. U. S. Fidelity & Guaranty Co., 208 U.S. 404, 28 S.Ct. 389, 52 L.Ed. 547; Town of River Junction v. Maryland Casualty Co., 5 Cir., 110 F.2d 278, certiorari denied 310 U.S. 634, 60 S.Ct. 1077, 84 L.Ed. 1404; Standard Acc. Ins. Co. of Detroit, Mich. v. Federal Nat. Bank, 10 Cir., 112 F.2d 692, affirmed on rehearing, 10 Cir., 115 F.2d 34; Exchange State Bank v. Federal Surety Co., 8 Cir., 28 F.2d 485, 488; Claiborne Parish School Bd. v. Fidelity & Deposit Co. of Maryland, 5 Cir., 40 F.2d 577, 579; Maryland Casualty Co. v. Dulaney Lumber Co., 5 Cir., 23 F.2d 378, 380; Fidelity & Deposit Co. of Maryland v. Union State Bank, D.C. Minn., 21 F.2d 102, 104; In re Van Winkle, D.C.Ky., 49 F.Supp. 711; United States Fidelity & Guaranty Co. v. John R. Alley & Co., D.C.Okl., 34 F.Supp. 604; Southern Surety Co. v. J. R. Holden Land & Lumber Co., 8 Cir., 14 F.2d 411, 413; American Fidelity Co. v. Delaney, D.C. Vt., 114 F.Supp. 702. It is superior to the Government’s lien for unpaid taxes. American Surety Co. of New York v. City of Louisville M. H. Comm., D.C.Ky., 63 F.Supp. 486, affirmed Glenn v. Ameri can Surety Co., 6 Cir., 160 F.2d 977; United States Fidelity & Guaranty Co. v. United States, 10 Cir., 201 F.2d 118; New York Casualty Co. v. Zwerner, D.C. Ill., 58 F.Supp. 473; American Fidelity Co. v. Delaney, D.C.Vt., 114 F.Supp. 702. The performance bond was executed on June 29, 1949; therefore, the sureties’ lien is superior to any lien arising thereafter, including the Government’s" }, { "docid": "6860941", "title": "", "text": "contractor. As between the Government and appellant surety who stepped into the shoes of the principal contractor, the Government could acquire no greater right to this fund than the subcontractor had.” 201 F.2d 118, at pages 121-122. The surety’s claim to the withheld funds is a question entirely apart from the issue of priorities, of course. It rests upon the doctrine of equitable subrogation that where a surety performs under a performance bond after the default of the contractor, it is entitled to an equitable lien on funds previously withheld by reason of the contractor’s default, at least to the extent of the surety’s expenses. See Lacy v. Maryland Casualty Co., 4 Cir., 1929, 32 F.2d 48 (see especially the discussion on pages 51-53); Farmers’ Bank v. Hayes, 6 Cir., 1932, 58 F.2d 34; American Fidelity Co. v. Delaney, D.C.Vt.1953, 114 F.Supp. 702, at page 711; United States Fidelity & Guaranty Co. v. U. S., supra, 201 F.2d at page 122. It is to be noted that this equitable doctrine is additional to and distinct from other rights of subrogation which the surety may have, be they derivative from the labor and materialmen it paid off, or derivative from the owner’s rights against the .contractor, if any. Some confusion was doubtlessly engendered by failure of counsel to distinguish among the. several equitable doctrines of subrogation which .may be involved in ,any complex fact situation. .Also, counsel for the surety seems to have taken too optimistic .a view of the effect of American Surety Co. v. Bethlehem National Bank, 1941, 314 U.S. 314, 62 S.Ct. 226, 86 L.Ed. 241, relating to the subrogation of the surety to the creditor’s remedies on the money claim against the debtor, Id., 314 U.S. at page 317, 62 S.Ct. at page 228, on the rights of the surety in this case. In any case, the surety’s right to the funds is a question entirely apart from the susceptibility of the funds to the federal tax liens. I have held that the funds are not so susceptible. Np priority .doctrine can make them otherwise, of course." }, { "docid": "4758563", "title": "", "text": "plaintiff has cited many where the surety’s rights have prevailed. The opinions in all but one of them were either filed before the Munsey Trust case or failed to mention it. The opinion which mentioned it, U. S. Fidelity & Guaranty Co. v. Triborough Bridge Authority, 297 N.Y. 31, 74 N.E.2d 226, distinguishes it from a case like that at bar on the ground that in the Munsey Trust case the fund held by the owner was “necessarily reduced” by the debts owed to the owner by the contractor. I cannot accept the premise. Such a reduction is far from “necessary”. Indeed, if the owner in the Munsey Trust case had thus reduced the fund, it would, in effect, have paid out the 10% which was to be withheld under the terms of the agreement and, as a result, would even under the federal law have discharged the surety. Globe Indemnity Co. v. Southern Pac. Co., 2 Cir., 30 F.2d 580. Thus, the Munsey Trust case is not based on any “necessary” reduction of the withheld fund by setoff but, just as the opinion said, upon unwillingness to “apply law relating to security to unappropriated sums which exist only aS a claim.” Even though the transactions involved in the case at bar took place in New York the Triborough case is not controlling authority. The question of priorities where federal tax liens are concerned is one of federal law. United States v. Kings County Iron Works, Inc., 2 Cir., 224 F.2d 232, 235, supra. Since there is thus no theory on which the surety in this case can be held to have a property interest in the withheld funds there is no occasion for discussing priorities. All the Government tax liens are superior to the claims of the surety, even those liens which accrued after payment of the laborers and materialmen by the surety. The State of New York as well as the Government seeks to assert tax liens in this case but, since they are admittedly subordinate to federal liens and the federal liens exceed in amount the withheld" }, { "docid": "6634004", "title": "", "text": "was not entitled to receive any money under the terms of the contract, for the Contractor owed materialmen on both jobs. On the Mt. Pleasant job the unpaid amount was practically equivalent to the amount withheld by the Owner, and on the Connellsville job the amount was substantially in excess of the amount withheld. It must now be determined under the Pennsylvania law whether the Contractor had any “property” or “rights to property” in the balances withheld from the Owner and paid by it into court. Cf. Central Surety and Insurance Corp. v. Martin Infante Co.. 3 Cir., 1959, 272 F.2d 231. It is a general principle that a material failure of performance by one party to a contract not justified by the conduct of the other discharges the latter’s duty to give the agreed exchange. Sections 274 and 275, Restatement, Contracts, with which Pennsylvania law is in accord; Wright v. Barber, 1921, 270 Pa. 186, 113 A. 200; City of Farrell to Use of Milarr v. H. Platt Co., 142 Pa. Super. 242, 15 A.2d 718; vol. 8 P.L.E. § 301; Sum.Pa.Jur. Contracts, § 498; cf. vol. 4, Corbin on Contracts, § 901. Also in accord are cases in other jurisdictions involving contracts providing for the payment of labor and material-men as a prerequisite for payment of the contract price. Central Surety & Insurance Corp. v. Martin Infante Co., supra; Fidelity & Deposit Co. v. New York City Housing Auth., supra; United States Fidelity & Guaranty Co. v. United States, 10 Cir., 1952, 201 F.2d 118; Wolverine Insurance Co. v. Phillips, D.C.N.D.Iowa W.D.1958, 165 F.Supp. 335; United States Fidelity and Guaranty Co. v. Miller, D.C.W.D.N.C.1956, 143 F. Supp. 941; Scott v. Zion Evangelical Lutheran Church, 1955, 75 S.D. 559, 70 N.W.2d 326; United States Fidelity & Guaranty Co. v. Triborough Bridge Authority, 1947, 297 N.Y. 31, 36-37, 74 N.E.2d 226, 228. In the cited cases it was held that the tax liens of the United States did not attach to the withheld funds; and the sureties and, in one case, the material-men, won the money. In at least four" }, { "docid": "14954686", "title": "", "text": "of a bankruptcy ease creates an estate, which “is comprised of all of the following property, wherever located and by whomever held: 1) ... all legal or equitable interests of the debtor in property as of the commencement of the case.” Although the question of whether a debtor’s interest in property is property of the estate is a question of federal law, the nature and extent of the debtor’s interest in property is determined by applicable non-bankruptcy law. Butner v. U.S., 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979); In re Prudential Lines, Inc., 928 F.2d 565 (2d Cir.), cert. denied, 502 U.S. 821, 112 S.Ct. 82, 116 L.Ed.2d 55 (1991). IFIC points out that the New York courts have held that the contractors in construction cases have no property interest in contract retainage where a surety has stepped in upon the contractor’s default. For example, in United States Fidelity & Guar. Co. v. Triborough Bridge Authority, 297 N.Y. 31, 74 N.E.2d 226 (1947), a surety sued to impress an equitable lien on funds held by the Triborough Bridge Authority (“TBA”). In that case, the facts were as follows: in 1940, the TBA entered into a contract with Petracca & Banko, Inc. (“Contractor”) for construction work, and the Contractor furnished both performance and payment bonds by United States Fidelity & Guaranty Co. (“USF & G”). The contract gave the TBA the right to withhold, out of any payments due the Contractor, any sums necessary to assure payment of all bills for labor and materials. The Contractor completed the work, which was accepted by TBA, which was holding approximately $100,000 representing the final payment due. However, the Contractor had not paid some $55,000 to subcontractors. In July and August of 1942, USF & G paid the subcontractors. But in May of 1942, the Internal Revenue Service assessed over $174,000 in income taxes against the Contractor, and it filed a notice of lien in June 1942. USF & G and the IRS both claimed that they were entitled to the funds held by the TBA. The New York Court of" }, { "docid": "4378818", "title": "", "text": "profit to the lender or investor, it is not profit within the doctrine of authorities exemplified by United States Fidelity and Guaranty Co. v. Worthington & Co., 5 Cir., 6 F.2d 502, certiorari denied 269 U.S. 583, 46 S.Ct. 119, 70 L.Ed. 424; Lacy v. Maryland Casualty Co., 4 Cir., 32 F.2d 48. Nor is it within the purview of those cases which deny to the surety the right to retain funds which accrue to it by reason of a favorable compounding of the debts of its principal as illustrated in Laber v. Gall, 71 App.D.C. 345, 110 F.2d 697; Martin v. Ellerbe’s Adm’r, 70 Ala. 326; Coggeshall v. Ruggles, 62 Ill. 401. The principle applied in rendering the presently assailed judgment, is the right of the sureties to be made whole, and profit is not involved. There remains the appellant’s final contention that the claim for interest is unsecured in that it arose after the levy of the tax lien. We agree with the district judge that a surety who makes good under his contract of suretyship upon default of the principal contractor, acquires an equitable lien against the unpaid balance in the hands of the person in whose favor the bond runs, and that such equitable lien upon payment by the surety relates back to the date of the contract and is superior to a claim of the United States for unpaid taxes for periods subsequent to the date of the contract of suretyship, although prior to the date of payment by the surety. In re Zaepfel and Russell, D.C., 49 F.Supp. 709, affirmed Farmers State Bank v. Jones, 6 Cir., 135 F.2d 215; Farmers’ Bank v. Hayes, 6 Cir., 58 F.2d 34; Prairie State Nat. Bank of Chicago v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412. The cases relied upon by the appellant are not contra. People of State of New York v. Maclay, 288 U.S. 290, 53 S.Ct. 323, 77 L.Ed. 754, involved 31 U.S.C.A. § 191, which provides that when a person indebted to the United States is insolvent and the" }, { "docid": "12449285", "title": "", "text": "the federal tax liens. The record indictates that most of these state liens are therefore entitled to priority on the old rule (again set forth in the New Britain case), “ ‘the first in time is the first in right.’ ” But, there is another feature in this case that, in our opinion, is totally decisive. In the Supreme Court decisions herein cited and relied on by the government, we find one constant factor. In each of those cases, the liens (federal and others) attached to property belonging to the defendant debtor, property that was his ail the time. Such is not the case here. The government’s debtor here is the contractor, who did not get the money. It is not necessary to rely on the so-called “equitable doctrine of relation back.” U. S. Fidelity & Guaranty Co. v. U. S., 10 Cir., 1952, 201 F.2d 118, 121. It suffices to say that the rights of the Internal Revenue Collector can rise no higher than those of its debtor whose right to property is sought to be levied upon. Alexandria Insulation Company forfeited its rights to the fund prior to the filing of the tax lien. It had no right to the fund. Therefore, the government does not. New York Casualty Co. v. Zwerner, D.C., 58 F.Supp. 473. We have read numerous decisions involving contractors’ bonds and attempts of the United States to recover taxes out of the balance in the hands of the owner. (Note: not the debtor, as in Supreme Court cases cited by the govemment). In each of these cases, the claim of the United States was denied. Thus, it must be here. An order in conformity with this opinion will be signed upon presentation. . U. S. Fidelity & Guaranty Company v. U. S., 10 Cir., 1952, 201 F.2d 118; General Casualty Company of America v. U. S., 5 Cir., 1953, 205 F.2d 753; West-over v. Simpson Construction Company, 9 Cir., 209 F.2d 908. . “Sec. 3670. Property subject to lien. “If any person liable to pay any tax neglects or refuses to pay the same" }, { "docid": "10088319", "title": "", "text": "a proper payment in that plaintiff had an equitable right to and lien on that sum, as well as the other sums herein mentioned. The equitable pledge herein involved, under the law of subrogation, relates back to the date of the bond, and, is, therefore, distinguishable from the mortgage lien involved in Dudley v. Eberly, supra. It occurs to me that the existence of this equitable lien in the law of suretyship is' an absolute necessity in this day and age of municipal corporations and others requiring the posting of bonds on public and other construction work. If no such a right or lien existed it would be difficult, if not impossible, to entice another to act as surety. Assuming, for the sake of argument, the soundness of the Trustee’s argument that ordinarily a surety cannot claim the-proceeds of bonded jobs under the equitable lien theory until it has discharged: all the debts incurred in the performance of those jobs, American Surety Co.. of New York v. Westinghouse Electric Manufacturing Co., 296 U.S. 133, 56-S.Ct. 9, 80 L.Ed. 105, the rule is unimportant when applied to my factual situation. The record shows a complete compliance with this rule on the bonded jobs, with the exception of disputed claims and a small item to the Rodda Paint Co. in the sum of $16.18, which I view as de minimis non curat lex.. Plaintiff had nothing whatsoever to do-with the election of the United States to offset Federal Unemployment, Withholding and Excise Taxes in the sum of $15,165.44 against the sum of $26,-453.75 due on the Baker Slide Job. The Trustee cites Paper v. Stern, 198 F. 642, 644 (8 Cir., 1912); Davis v. Woolf, 147 F.2d 629 (4 Cir., 1945), and In re Collins & Kiser Construction Co.. (D.C.S.D.Iowa 1962), D.C., 204 F.Supp.. 42 for the proposition that all sums deposited in the Joint Control Account, from November 6, 1961, were preferential payments to or for the benefit of the-plaintiff. First of all, the record is in absolute contradiction of this claim. Secondly, the cases are readily distinguishable from the facts" }, { "docid": "6860939", "title": "", "text": "money. “It is not necessary to rely on the so-called ‘equitable doctrine of relation back.’ United States Fidelity & Guaranty Co. v. U. S., 10 Cir., 1952, 201 F.2d 113, 121. It suffices to say that the rights of the Internal Revenue Collector can rise no higher than those of its debtor whose right to property is sought to be levied upon. Alexandria Insulation Company forfeited its rights to the fund prior to the filing of the tax lien. It had no right to the fund. Therefore, the government does not. New York Casualty Co. v. Zwer-ner, D.C., 58 F.Supp. 473.” Id. at page 451. And, again in what seems to be an alternate ground for decision although not specifically so denominated, the Court of Appeals for the 10th Circuit, in United States Fidelity & Guaranty Co. v. U. S., 10 Cir., 1952, 201 F.2d 118, a case similar to the one at bar, said, referring to the case of United States v. Security Trust & Savings Bank, 1950, 340 U.S. 47, 71 S.Ct. 111, 95 L.Ed. 53: “It is to be noted that both liens attached to property belonging to the defendant debtor, property that was his at all times. Such is not the case here. On the date of the execution of the subcontract the prime contractor had a specific right of ownership in any funds accruing to the subcontractor from the performance of his subcontract. The right to withhold these funds upon default was superior to any other claim against the fund as the property of the subcontractor. When the subcontractor defaulted and its surety, the appellant in this case performed it stepped,into the shoes of the prime contractor and was sub-rogated to all rights that it held against the subcontractor. Those rights related back to the date of the subcontract and were effective from the date thereof. This was in point of time prior to the perfection of the Government’s tax liens. Actually the defaulting subcontractor had no right to this fund. It owed the principal contractor more than was due to it from such principal" } ]

[ { "docid": "23196769", "title": "", "text": "Admin.News 1976, p. 5910. The economic factors relevant to the decision as to whether fee shifting in this case would be unjust must be weighed in light of this legislative intent. Should it be determined that counsel is entitled to fees here, the amount of the award must be adequate to provide an incentive “to attract competent counsel.” Senate Report at 6. The amount of fees awarded was intended to be governed by the same standards prevailing in other types of equally complex federal litigation, such as antitrust cases. Senate Report at 6. Subsequent cases have also recognized this need to provide economic incentives to the legal profession. See, e. g., Keyes v. School Dist. No. 1, Denver, Colo., 439 F.Supp. 393 (D.Colo.1977). See also Berger, Court Awarded Attorneys’ Fees: What is “Reasonable”?, 126 U.Pa.L.Rev. 281, 306-15 (1977). This is not to say that courts are not rightly concerned that windfall fees be avoided and that an otherwise reasonable fee not be made excessive by virtue of a fee agreement. See Farmington Dowell Products Co. v. Forster Mfg. Co., 421 F.2d 61, 87 (1st Cir. 1970); Senate Report at 6. In this case, the record is unclear on the exact terms of the fee agreement. However, we reiterate that a fee agreement is irrelevant to the issue of entitlement and should not enter into the determination of the amount of a reasonable fee. A private fee arrangement is not in itself “special circumstances which would render an award unjust,” and unless the court finds such circumstances, it may not deny fees in this case. If the court sets the fee amount and determines that counsel has already received remuneration equal to or above that amount and that the award will not go to compensate the plaintiff, it would be an abuse of its discretion to deny the award of fees solely on that basis. Such a decision would be undesirable as a “windfall” to the defendants, a frustration of the congressional policy of encouraging the private enforcement of civil rights actions, and perhaps an unwarranted interference with a voluntary attorney-client" } ]

[ { "docid": "4460050", "title": "", "text": "Angeles, 8 Empl.Prac.Dec. 5047 (C.D. Cal.1974), a Title VII case in which the court said: [I]t is not legally relevant that plaintiffs’ counsel ... are employed by the Center for Law In The Public Interest, a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorneys’ fees to be computed in the traditional manner .... Id. at 5048-49. Similarly, the House Report endorsed other cases that said awards of fees to civil rights law firms should be equal to those awarded to members of the private bar. See H.R.Rep. No. 1558, 94th Cong., 2d Sess. 8 n. 16 (1976), and cases cited therein. Second, the purpose of the legislative scheme of the Civil Rights Act of 1964 will be served by computing fees based on a “market value” approach. The purpose of Title VIPs fee award provision, as we have seen, is to encourage the private enforcement of the civil rights laws. While some lawyers would assist in the private enforcement of Title VII for a reduced fee, Congress has recognized that payment of full fees will provide greater enforcement incentives. Full fee awards to public interest law firms help finance their work, both in the instant case, and in others. Indeed, fee awards (paid by proven discriminators) may help reduce the subsidies (paid from the public fisc) that some of these organizations receive. Third, to compute fees differently depending on the identity of the successful plaintiff’s attorney might result in two kinds of windfalls to defendants. The incentive to employers not to discriminate is reduced if diminished fee awards are assessed when discrimination is established. Moreover, where a public interest law firm serves as plaintiff’s counsel (a law firm that, under the panel’s approach, will not obtain the full value of its services from the losing defendant) the defendant will be subject to a lesser incentive to settle a suit without litigation than would be the case if a high-priced private firm undertook plaintiff’s representation. Dennis v. Chang, 611 F.2d 1302, 1307 (9th Cir. 1980). That" }, { "docid": "3359996", "title": "", "text": "we think that allowing full compensation for the services of public interest lawyers serves the clearly expressed legislative purpose of encouraging private enforcement of civil rights laws. S.Rep.No. 1011, supra, at 5; H.R.Rep.No. 1558, supra, at 2. As the district court pointed out, the National Prison Project, like other such organizations, has finite resources, and a full fee award will enable it to undertake further civil rights litigation. Second, we note that other courts have recently and convincingly rejected the notion that fee awards under the Fees Act (42 U.S.C. § 1988) or comparable statutes should be reduced or keyed to an attorney’s salary when a prevailing party has been represented by a public interest organization. In Rodriguez v. Taylor, 569 F.2d 1231, 1247—48 (3rd Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978), an ADEA case, the third circuit discussed this issue at length and concluded that the district court had abused its discretion in considering the salaries of legal services lawyers in setting fees. Other cases refusing to set fees in accordance with salaries are Lackey v. Bowling, 476 F.Supp. 1111, 1116-17 (N.D.Ill.1979) (award to legal services organization under § 1988) and Gunther v. Iowa State Men’s Reformatory, 466 F.Supp. 367, 368-69 (N.D.Iowa 1979) (award to Iowa Civil Liberties Union in Title VII case). See also Beazer v. New York City Transit Authority, 558 F.2d 97, 100 (2d Cir. 1977), rev’d on other grds., 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979) (award under § 1988 should be calculated without regard to non-profit or public interest nature of the work). Third, we are not convinced by the defendants’ suggestion that setting fees in this case without regard to the salaries paid by the National Prison Project results in an impermissible windfall to the organization. Of course, concern is expressed in the legislative history and in the case law that counsel not be unjustly enriched. E. g., 5. Rep.No. 1011, supra, at 6; Sargeant v. Sharp, 579 F.2d 645, 648 (1st Cir. 1978). We do not think, however, that compensating a public" }, { "docid": "22633558", "title": "", "text": "of its costs. We do not expect that even in the same community and at the same time each district judge will necessarily select the same “break point” as a presumptive maximum rate needed to avoid windfall fees to non-profit law offices. But we anticipate that the authority to place a ceiling on the appropriate private billing rate to be used in calculating fee awards for non-profit law offices will exert a moderating influence on those awards. This “break point” approach will avoid any distinction between non-profit law offices and profit-making firms in the general run of fee award claims where the billing rate of lawyers of comparable skill and experiences is below the figure that the judge would select as a “break point,” but at the same time it will permit the judge to reject use of billing rates above that figure, which would yield significant windfalls, contrary to an expressed legislative objective. With this approach in use, we think it appropriate to end the uncertainty as to whether the fees of non-profit law offices will or will not be proportionately reduced to reflect the share of their budgets reimbursed by public funding, and we conclude that such reductions should not be made. In this case, we have decided to apply the “break point” approach ourselves. See Beazer v. New York City Transit Authority, supra, 558 F.2d at 100-01 (revising amount of fee award); Kamberos v. GTE Automatic Electric, Inc., 603 F.2d 598 (7th Cir.1979) (same). In light of billing rates in New York City in 1980, the last year for which fees are claimed in this application, we think that an appropriate “break point” to be used in this case is $75 per hour. We do not intend to preclude district judges in other cases from selecting a “break point” somewhat above or below the figure we have selected in this case. We simply conclude that as of 1980 fees for the claimants in this case should not be calculated at rates higher than $75 per hour, instead of at rates ranging from $70 to $140 as used" }, { "docid": "22633554", "title": "", "text": "in a year of all attorneys in the office. This cost-based approach would recognize that since the services of non-profit law offices are not allocated by a pricing mechanism, there is no real market billing rate that is precisely comparable for such offices. Indeed, cost-based fee awards have received increasing attention in recent years as an appropriate approach to all fee awards. See Copeland v. Marshall, supra, 641 F.2d at 908 (Wilkey, J., dissenting); Glover v. Johnson, 531 F.Supp. 1036 (E.D.Mich.1982); Page v. Preissner, 468 F.Supp. 399 (S.D.Iowa 1979); Alsager v. District Court of Polk County, 447 F.Supp. 572 (S.D.Iowa 1977). Alternatively, a modified cost-based approach could be used that would combine the non-profit office’s per-hour overhead cost with the value of an hour of an attorney’s time, the latter component to be derived from the salary an attorney of comparable skill and experience is paid by a private law firm. This approach would reduce the windfall inherent in the use of a private firm’s billing rate by. eliminating both the profit component and the increment by which the private firm’s overhead exceeds that of the non-profit office. By using the value of the non-profit attorney’s time instead of the cost of that time to his employer it would produce a fee reflecting the costs the non-profit office would likely have incurred to hire the attorney were it not for budgetary limitations. However attractive cost-based calculations of attorney’s fee awards for non-profit law offices might be as a means of avoiding windfall recoveries, we are not disposed to mandate them for several reasons. First, the case law in this area, including our own decisions in Torres and Beazer, has approved, almost without exception, the use of billing rates as a basis for calculating fee awards for non-profit law offices and has generally counseled against an invariable distinction between non-profit law offices and profit-making firms in calculating fee awards. Second, the windfall effect occurs primarily when non-profit law offices are compensated at the billing rates of profit-making law firms at the higher end of the market; these are the rates that" }, { "docid": "3359997", "title": "", "text": "set fees in accordance with salaries are Lackey v. Bowling, 476 F.Supp. 1111, 1116-17 (N.D.Ill.1979) (award to legal services organization under § 1988) and Gunther v. Iowa State Men’s Reformatory, 466 F.Supp. 367, 368-69 (N.D.Iowa 1979) (award to Iowa Civil Liberties Union in Title VII case). See also Beazer v. New York City Transit Authority, 558 F.2d 97, 100 (2d Cir. 1977), rev’d on other grds., 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979) (award under § 1988 should be calculated without regard to non-profit or public interest nature of the work). Third, we are not convinced by the defendants’ suggestion that setting fees in this case without regard to the salaries paid by the National Prison Project results in an impermissible windfall to the organization. Of course, concern is expressed in the legislative history and in the case law that counsel not be unjustly enriched. E. g., 5. Rep.No. 1011, supra, at 6; Sargeant v. Sharp, 579 F.2d 645, 648 (1st Cir. 1978). We do not think, however, that compensating a public interest organization like the National Prison Project on the same basis as a private practitioner results in such a windfall, particularly when fees are expected to be used to finance more civil rights litigation. Indeed, we are concerned that compensation at a lesser rate would result in a windfall to the defendants. See id. at 649. Finally, the panel decision in Copeland v. Marshall, 193 U.S.App.D.C. 219, 594 F.2d 244 (D.C.Cir.1978), does not persuade us to revamp our entire approach to attorney’s fees. In that case, the court advocated a cost plus reasonable profit approach to calculating attorney’s fees in a Title VII case where the federal government was the defendant. We are not at this point convinced that this approach would yield a fairer calculation of attorney’s fees in a case like Copeland, and, for reasons stated above, we do not think a cost or salary related approach to computing attorney’s fees in a case like this would be legitimate. We note, in any event, that the panel decision in Copeland has been vacated," }, { "docid": "13594446", "title": "", "text": "because the action provided a private benefit to the plaintiff rather than a public benefit to a class of similarly situated persons. We believe that a plaintiff in Wheatley’s position might well be deterred from pursuing his claim, absent some provision for attorney’s fees. Yet, actions such as this which deter police overreaching benefit society as a whole. Milwe v. Cavuoto, supra, 653 F.2d at 84; Fox v. Parker, 626 F.2d 351, 353 (4th Cir. 1980). Under these circumstances, the trial court did not err in granting Wheatley’s application for attorney’s fees. The magnitude of the award presents, however, a more serious question. Although awards of attorney’s fees are within the discretion of the trial court, this Court has repeatedly stressed the need to view such awards with an “eye to moderation” so as to avoid even the appearance of windfall fees. Beazer v. New York City Transit Authority, 558 F.2d 97, 101 (2d Cir. 1977), rev’d on other grounds, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979); City of Detroit v. Grinnell Corp., 495 F.2d 448, 469-70 (2d Cir. 1974). The total award of $39,742 was based upon a lodestar figure of $29,742 plus a bonus allowance of $10,000. Because defendants do not contest the number of hours or the hourly rates claimed by plaintiff’s attorney, the appropriateness of the lodestar figure is not at issue. On the facts of this case, however, we cannot uphold the $10,000 bonus awarded by the district court. The legal issues involved were not inordinately complex. See Beazer v. New York City Transit Authority, supra, 558 F.2d at 100. Neither were the factual issues. Although the absence of any serious injuries precluded the possibility of a substantial verdict, there was little likelihood that plaintiff would be defeated on the issue of liability. See Zarcone v. Perry, 581 F.2d 1039, 1044 (2d Cir. 1978). Indeed, after the first trial, plaintiff was assured of recovery. Once liability is established, even a nominal verdict is sufficient to support an award of attorney’s fees. Carey v. Piphus, 435 U.S. 247, 257 n.11, 98 S.Ct. 1042," }, { "docid": "22633519", "title": "", "text": "and the New York Civil Liberties Union, for services rendered by attorneys in their employ. The appeal arises out of litigation conducted during the last ten years on behalf of a class of mentally retarded persons confined at the Willowbrook Developmental Center. Defendants-appellants are the Governor of the State of New York and various state officials with responsibilities for the care of the mentally retarded, collectively referred to hereinafter as the State. The litigation, brought pursuant to 42 U.S.C. § 1983 (Supp. IV 1980), resulted in the entry of a consent decree and elaborate subsequent proceedings challenging compliance with the decree. On June 15, 1982, the District Court for the Eastern District of New York (John R. Bartels, Judge) awarded plaintiffs attorney’s fees and costs of $1,406,751.39. 544 F.Supp. 330 (E.D.N.Y.1982). Although this litigation evolved into a prolonged contest raising complex legal issues, we nevertheless believe that the District Court’s fee award was excessive and unreasonable. As we have warned in the past, attorney’s fees are to be awarded “with an ‘eye to moderation,’ seeking to avoid either the reality or the appearance of awarding ‘windfall fees.’” Beazer v. New York City Transit Authority, 558 F.2d 97, 101 (2d Cir.1977) (quoting City of Detroit v. Grinnell Corp., 495 F.2d 448, 469-70 (2d Cir.1974) (Grinnell I)), rev’d on other grounds, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979). Because we conclude that the fees awarded in this case constitute a substantial windfall for plaintiffs’ attorneys, we reverse the District Court’s order and remand the matter for further proceedings. We have also concluded that this appeal affords an appropriate occasion for providing trial courts with additional guidance in calculating attorney’s fee awards. I. Factual Background and District Court Decision Representatives of the Willowbrook class filed this suit in March 1972, alleging constitutional violations in the conditions at the Willowbrook Developmental Center and requesting injunctive relief. After the District Court granted the plaintiffs’ motion for a preliminary injunction in April 1973 but before a final ruling on the merits of the case, the parties negotiated a settlement of their dispute. On" }, { "docid": "3359994", "title": "", "text": "a legal services organization should be limited to the organization’s costs. In this case the defendants would have us take a new approach. We decline to do so, and take this opportunity to explain why we adhere to our previously stated views. First and foremost, we think that compensating public interest lawyers the same way as private practitioners is consistent with the legislative history of the Fees Act. The Senate Judiciary Committee Report, which states that fees are to be awarded according to the standards in Johnson v. Georgia Highway Express, Inc., draws no distinction between employees of public interest organizations and members of the private bar. S.Rep.No. 1011, 94th Cong., 2d Sess. 6, reprinted in [1976] U.S. Code Cong. & AdmimNews, pp. 5908, 5913. Indeed, the Senate Report cites with approval Davis v. County of Los Angeles, 8 EPD ¶ 9444 (C.D.Cal.1974), a Title VII case in which the court said, in determining the amount of attorney’s fees to award: [I]t is not legally relevant that plaintiffs’ counsel ... are employed by the Center for Law in the Public Interest, a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorneys’ fees to be computed in the traditional manner , Id. at $$ 9444^5. The court made its award by calculating reasonable hourly rates and referring to the factors mentioned in Johnson v. Georgia Highway Express, Inc. Id. See also Swann v. Charlotte-Mecklenburg Board of Education, 66 F.R.D. 483, 486 (W.D.N.C.1975), also cited in the Senate Report. Likewise, the House Judiciary Committee Report, H.R.No. 1558, 94th Cong., 2d Sess. 8 n.16 (1976), cites civil rights cases squarely holding that fee awards may not be reduced because the prevailing party’s attorney is employed by a civil rights or tax exempt organization. Torres v. Sachs, 538 F.2d 10, 13 (2d Cir. 1976) (award for services of Puerto Rico Legal Defense and Education Fund upheld); Fairley v. Patterson, 493 F.2d 598, 606-07 (5th Cir. 1974) (award to Lawyers Committee for Civil Rights Under Law reversed as too small). Furthermore," }, { "docid": "22633579", "title": "", "text": "of the overhead factor are imaginary. The non-profit office must keep records of its overhead and of the number and salaries of its attorneys for a variety of other purposes, see Copeland v. Marshall, supra, 641 F.2d at 928 n. 51 (dissenting opinion of Judge Wilkey), and any reasonable method of allocation, e.g., a weighted dollar-hour basis, should be acceptable. Courts seem to have become bemused by the apparent simplicity of “hourly billing rates” and apply these mechanically, without knowing just what they reflect or to what use they are put. I recognize, however, that our decisions in Torres v. Sachs, 538 F.2d 10, 13 (2 Cir.1976) and Beazer v. New York City Transit Authority, 558 F.2d 97, 100 (2 Cir.1977), rev’d on other grounds, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979), look the other way, although the former, in a case where the award was $23,252, made no real analysis of the problem and the latter simply followed in its path. Hence, pending the clarification which hopefully will come from the Supreme Court in Blum v. Stenson, 671 F.2d 493, cert, granted, — U.S. —, 103 S.Ct. 2426, 77 L.Ed.2d 1314 (1983), I am willing to accept Judge Newman’s “break point” approach as a solution which is more equitable to the defendants than the un checked “hourly billing rate” method and still is eminently fair to the plaintiffs. . The debate in Copeland v. Marshall, 641 F.2d 880, 896-900, 926 (D.C.Cir.1980) (en banc), concerned a slightly different subject — the allocation of the overhead of a large private law firm. Even as to this somewhat more complicated problem, the majority exaggerated the difficulties. . Hourly billing rates must include, in addition to the hourly compensation of associates and an imputed hourly compensation for partners, a proper allocation of overhead. No one seems to know to what extent they take account of the cost of hours that cannot be billed or must be billed at noncompensatory rates, or include a profit component even before adjustment to reflect the success of the firm’s efforts, compare Copeland v. Marshall," }, { "docid": "22633555", "title": "", "text": "increment by which the private firm’s overhead exceeds that of the non-profit office. By using the value of the non-profit attorney’s time instead of the cost of that time to his employer it would produce a fee reflecting the costs the non-profit office would likely have incurred to hire the attorney were it not for budgetary limitations. However attractive cost-based calculations of attorney’s fee awards for non-profit law offices might be as a means of avoiding windfall recoveries, we are not disposed to mandate them for several reasons. First, the case law in this area, including our own decisions in Torres and Beazer, has approved, almost without exception, the use of billing rates as a basis for calculating fee awards for non-profit law offices and has generally counseled against an invariable distinction between non-profit law offices and profit-making firms in calculating fee awards. Second, the windfall effect occurs primarily when non-profit law offices are compensated at the billing rates of profit-making law firms at the higher end of the market; these are the rates that can be expected to reflect a substantial profit component and a substantial premium for high rent and other costs. Third, cost-based fee awards, if required as a general matter, would burden the parties and the district courts with inevitable disputes about cost accounting. Indeed, the burden of calculating costs was one of the reasons that influenced the majority of the District of Columbia Circuit to reject a cost-based approach to fee awards. Copeland v. Marshall, supra, 641 F.2d at 896-900. We are thus confronted with this dilemma: use of billing rates for fees of non-profit law offices produces windfalls, which Congress disapproved; on the other hand, use of cost-based rates would conflict with our precedents and create administrative burdens if generally required, and such rates are needed to avoid significant windfalls only when billing rates are high. This statement of the problem suggests its own resolution: to award fees to nonprofit law offices at billing rates of comparable attorneys in the general run of cases as long as the billing rates are not so high" }, { "docid": "790810", "title": "", "text": "beginning to reflect that return to older virtues and good sense. See, e.g., Brill, Fickle Fees, American Lawyer 1 (September 1983). As this case demonstrates, attorneys with great expertise may obtain excellent results without running up an inordinate number of hours with the aid of large staffs. Their fee should reflect their ability to save hours; they should not be penalized for being efficient. B. Rate Plaintiffs seek compensation at $175 per hour for the time of both Mr. Schneps and Mr. Lottman. The proper hourly rate to be applied in a section 1988 attorneys fees application is one “normally charged for similar work by attorneys of like skill in the area.” Cohen v. West Haven Board of Police Commissioners, 638 F.2d 496, 505 (2d Cir.1980) (quoting City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1098 (2d Cir.1977)). That amount should not produce a windfall to the attorneys. See New York Association for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1149. In the case of non-profit organizations, fees should be calculated under the like skill standard up to the “break point” when a higher fee would provide such a windfall. Id. at 1152. Defendants claim that to compensate the lawyers in this case at $175 an hour would provide a windfall and in addition they assert that Mr. Lottman falls into the category of a public interest lawyer governed by the standards set forth in NYSARC. NYSARC, however, dealt with non-profit organizations, the Legal Aid Society, and the American Civil Liberties Union. Id. at 1154. Mr. Lottman was not employed by such an organization for work on this case. He was associated with an independent attorney. He paid his secretary separately and did much of his work out of Mr. Schneps’s office. For purposes of this case, he must be deemed a sole practitioner. Mr. Schnepps’s regular hourly rate was $100 in 1978, $125 in 1980, and currently it is $150. He seeks compensation at the rate of $175 per hour because of the contingent nature of this litigation and because of its complexity. Mr. Lottman does not" }, { "docid": "3359998", "title": "", "text": "interest organization like the National Prison Project on the same basis as a private practitioner results in such a windfall, particularly when fees are expected to be used to finance more civil rights litigation. Indeed, we are concerned that compensation at a lesser rate would result in a windfall to the defendants. See id. at 649. Finally, the panel decision in Copeland v. Marshall, 193 U.S.App.D.C. 219, 594 F.2d 244 (D.C.Cir.1978), does not persuade us to revamp our entire approach to attorney’s fees. In that case, the court advocated a cost plus reasonable profit approach to calculating attorney’s fees in a Title VII case where the federal government was the defendant. We are not at this point convinced that this approach would yield a fairer calculation of attorney’s fees in a case like Copeland, and, for reasons stated above, we do not think a cost or salary related approach to computing attorney’s fees in a case like this would be legitimate. We note, in any event, that the panel decision in Copeland has been vacated, that the case has been reheard en banc, and that a decision is still forthcoming. See Copeland v. Marshall, 48 U.S.L.W. 2017-18 (D.C.Cir. July 10, 1979). Judgments affirmed. . Two cases have been consolidated for appeal purposes. Palmigiano v. Garrahy was a successful class action challenging the overall conditions at the Rhode Island prisons as violative of the eighth amendment. 443 F.Supp. 956 (D.R.I.1977). In that case the district judge awarded $86,655.00 in attorney’s fees. 466 F.Supp. 732 (D.R.I.1979). Jefferson v. Southworth was a successful challenge to a prolonged “lock-up” at the state’s maximum security facility. 447 F.Supp. 179 (D.R.I.1978). In that case attorney’s fees of $28,828.75 were awarded. C.A. No. 77-544 (D.R.I., unpublished opinion filed February 22, 1979, and order entered March 9, 1979). . At a hearing about attorney’s fees in Palmigiano v. Garrahy, the state defendants argued to the district court that “it would be improper . to award these attorneys [the salaried employees of the National Prison Project] an amount in excess of their salary as computed and reflected in percentage" }, { "docid": "22633578", "title": "", "text": "F.2d 1231, 1248 (3 Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978), plus the non-profit office’s per hour overhead. This would satisfy the indications in the Senate and House reports that the amount of fee awards in civil rights cases should be “governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases”, Senate Report No. 1011, 94th Cong., 2d Sess. 6 (1976), reprinted in 1976 U.S. Code Cong. & Ad.News 5908, see also House Report No. 1558, 94th Cong., 2d Sess. 8 n. 16 (1976). It would avoid, however, the imposition on a defendant — often, as here, a financially hard pressed unit of state or local government — of an award that would clearly be a windfall, to wit, compensation for overhead that is required for the business of a large private law firm but is many times what the non-profit organization incurs or needs, not to speak of a profit element. The difficulties supposed to inhere in the calculation of the overhead factor are imaginary. The non-profit office must keep records of its overhead and of the number and salaries of its attorneys for a variety of other purposes, see Copeland v. Marshall, supra, 641 F.2d at 928 n. 51 (dissenting opinion of Judge Wilkey), and any reasonable method of allocation, e.g., a weighted dollar-hour basis, should be acceptable. Courts seem to have become bemused by the apparent simplicity of “hourly billing rates” and apply these mechanically, without knowing just what they reflect or to what use they are put. I recognize, however, that our decisions in Torres v. Sachs, 538 F.2d 10, 13 (2 Cir.1976) and Beazer v. New York City Transit Authority, 558 F.2d 97, 100 (2 Cir.1977), rev’d on other grounds, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979), look the other way, although the former, in a case where the award was $23,252, made no real analysis of the problem and the latter simply followed in its path. Hence, pending the clarification which hopefully will come from the" }, { "docid": "3359995", "title": "", "text": "for Law in the Public Interest, a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorneys’ fees to be computed in the traditional manner , Id. at $$ 9444^5. The court made its award by calculating reasonable hourly rates and referring to the factors mentioned in Johnson v. Georgia Highway Express, Inc. Id. See also Swann v. Charlotte-Mecklenburg Board of Education, 66 F.R.D. 483, 486 (W.D.N.C.1975), also cited in the Senate Report. Likewise, the House Judiciary Committee Report, H.R.No. 1558, 94th Cong., 2d Sess. 8 n.16 (1976), cites civil rights cases squarely holding that fee awards may not be reduced because the prevailing party’s attorney is employed by a civil rights or tax exempt organization. Torres v. Sachs, 538 F.2d 10, 13 (2d Cir. 1976) (award for services of Puerto Rico Legal Defense and Education Fund upheld); Fairley v. Patterson, 493 F.2d 598, 606-07 (5th Cir. 1974) (award to Lawyers Committee for Civil Rights Under Law reversed as too small). Furthermore, we think that allowing full compensation for the services of public interest lawyers serves the clearly expressed legislative purpose of encouraging private enforcement of civil rights laws. S.Rep.No. 1011, supra, at 5; H.R.Rep.No. 1558, supra, at 2. As the district court pointed out, the National Prison Project, like other such organizations, has finite resources, and a full fee award will enable it to undertake further civil rights litigation. Second, we note that other courts have recently and convincingly rejected the notion that fee awards under the Fees Act (42 U.S.C. § 1988) or comparable statutes should be reduced or keyed to an attorney’s salary when a prevailing party has been represented by a public interest organization. In Rodriguez v. Taylor, 569 F.2d 1231, 1247—48 (3rd Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978), an ADEA case, the third circuit discussed this issue at length and concluded that the district court had abused its discretion in considering the salaries of legal services lawyers in setting fees. Other cases refusing to" }, { "docid": "4460051", "title": "", "text": "Title VII for a reduced fee, Congress has recognized that payment of full fees will provide greater enforcement incentives. Full fee awards to public interest law firms help finance their work, both in the instant case, and in others. Indeed, fee awards (paid by proven discriminators) may help reduce the subsidies (paid from the public fisc) that some of these organizations receive. Third, to compute fees differently depending on the identity of the successful plaintiff’s attorney might result in two kinds of windfalls to defendants. The incentive to employers not to discriminate is reduced if diminished fee awards are assessed when discrimination is established. Moreover, where a public interest law firm serves as plaintiff’s counsel (a law firm that, under the panel’s approach, will not obtain the full value of its services from the losing defendant) the defendant will be subject to a lesser incentive to settle a suit without litigation than would be the case if a high-priced private firm undertook plaintiff’s representation. Dennis v. Chang, 611 F.2d 1302, 1307 (9th Cir. 1980). That is so because the marginal cost of each hour of continued litigation would be reduced. Defendant’s counsel could inundate the plaintiff with discovery requests without fear of paying the full value of the legal resources wasted in response. We do not think that Title VII intended that defendants should have an incentive to litigate imprudently simply because of the fortuity of the identity of plaintiff’s counsel. Fourth, we note that the vast majority of courts that have considered this issue agrees with us that attorney’s fees should not be based on the costs of the successful party. Instead, fees should be based on the market value of the legal services rendered. Oldham v. Ehrlich, at 168-169 (8th Cir. March 12, 1980); Palmigiano v. Garrahy, at 599-603 (1st Cir. 1980); Dennis v. Chang, 611 F.2d 1302, 1309 (9th Cir. 1980); Carey v. New York Gaslight Club, Inc., 598 F.2d 1253, 1255 n. 1 (2d Cir. 1979), aff’d, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980); Reynolds v. Coomey, 567 F.2d 1166, 1167 (1st Cir." }, { "docid": "18391923", "title": "", "text": "have not presented any support for this claim, nor is there any indication in the record or testimony to suggest an excess of time with respect to this research. After reviewing the record, the Court finds that there are no other instances of excessive time charges that should be reduced. III. Plaintiffs’ Objections A. Richard Sobol’s Legal Services At the outset of this litigation, Richard Sobol was a salaried employee of CDF. In June, 1976 he entered private practice, but agreed with CDF to continue working on this litigation for $30/hour. At that time, this figure represented the same hourly rate he received at CDF as a salaried attorney ($18/hour) plus the hourly rate of his overhead ($12/hour). Plaintiffs, in their fee application, seek reimbursement for Sobol’s services performed under this arrangement at “prevailing” hourly rates ranging from $75/hour to $90/hour. Magistrate Raby, in his report, characterized such reimbursement as “unjust enrichment,” and recommended compensation at $40/hour, that is, CDF’s actual costs plus an adjustment for inflation. Plaintiffs disagree with the Magistrate’s recommendation and reassert their argument that the Court should award Sobol’s fee at prevailing rates. The Court agrees. Although plaintiffs have not cited any authority where this type of fee arrangement has been examined, other similar arrangements suggest that the reimbursement of Sobol’s time at prevailing rates is consistent with this Circuit’s rule that 42 U.S.C. § 1988 be applied broadly to achieve its remedial purpose. See Mid-Hudson Legal Services, Inc. v. G & U, Inc., 578 F.2d 34, 37 (2d Cir. 1978). This Circuit has consistently held that fee awards involving public interest legal services are measured by the value of the services performed, without regard to the non-profit or public interest nature of the legal work done. See Torres v. Sach, 538 F.2d 10, 13 (2d Cir. 1976); Beazer v. New York City Transit Authority, 558 F.2d 97, 100 (2d Cir. 1977), rev’d on other grounds, 440 U.S. 568, 99 S.Ct. 1335, 59 L.Ed.2d 587 (1979); see also Carey v. New York Gaslight Club, Inc., 598 F.2d 1253, 1255 n.1 (2d Cir. 1979), aff’d 447 U.S." }, { "docid": "3359989", "title": "", "text": "BOWNES, Circuit Judge. This is another round in the litigation about conditions at the Adult Correctional Institutions in Rhode Island. See Palmigiano v. Garrahy, 599 F.2d 17 (1st Cir. 1979). In this appeal the state defendants contest an award of attorney’s fees totalling $115,-483.75 made to the plaintiff prisoners under the Civil Rights Attorney’s Fees Awards Act of 1976 (the Fees Act), Pub.L.No. 94- 559, 90 Stat. 2641 (amending 42 U.S.C. § 1988). The prisoners were represented by four lawyers: three were employed by the National Prison Project of the privately funded American Civil Liberties Union and the fourth, Robert Mann, was in private practice. The defendants accept the fee award as it relates to Mr. Mann’s services. In addition, they concede that fees may be awarded for the services of attorneys employed by a public interest organization such as the National Prison Project, and that the district judge weighed each of the twelve factors we have said must be considered in making a fee award under the Fees Act. See King v. Greenblatt, 560 F.2d 1024, 1026-27 (1st Cir. 1977), cert, denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978). Nevertheless, the defendants contend that the district court erred in failing to consider the salaries of the National Prison Project lawyers in Computing a reasonable fee. The district court understood the defendants to be arguing that the award for these lawyers’ services must be limited to the actual cost to the National Prison Project in litigating the plaintiffs’ lawsuits, as represented by the salaries paid counsel for the time spent on the cases. In rejecting this argument, the district court considered itself bound by decisions of this court, particularly Lund v. Affleck, 587 F.2d 75 (1st Cir. 1978) and Reynolds v. Coomey, 567 F.2d 1166 (1st Cir. 1978), to compensate counsel on the same basis as private practitioners. Palmigiano v. Garrahy, 466 F.Supp. 732, 736 (D.R.I.1979); Jefferson v. Southworth, C.A. No. 77-544, slip op. at 18 (D.R.I. February 22, 1979). In addition, it found no support in other case law or the legislative history of the Fees" }, { "docid": "18391924", "title": "", "text": "their argument that the Court should award Sobol’s fee at prevailing rates. The Court agrees. Although plaintiffs have not cited any authority where this type of fee arrangement has been examined, other similar arrangements suggest that the reimbursement of Sobol’s time at prevailing rates is consistent with this Circuit’s rule that 42 U.S.C. § 1988 be applied broadly to achieve its remedial purpose. See Mid-Hudson Legal Services, Inc. v. G & U, Inc., 578 F.2d 34, 37 (2d Cir. 1978). This Circuit has consistently held that fee awards involving public interest legal services are measured by the value of the services performed, without regard to the non-profit or public interest nature of the legal work done. See Torres v. Sach, 538 F.2d 10, 13 (2d Cir. 1976); Beazer v. New York City Transit Authority, 558 F.2d 97, 100 (2d Cir. 1977), rev’d on other grounds, 440 U.S. 568, 99 S.Ct. 1335, 59 L.Ed.2d 587 (1979); see also Carey v. New York Gaslight Club, Inc., 598 F.2d 1253, 1255 n.1 (2d Cir. 1979), aff’d 447 U.S. 54, 70 n.9, 100 S.Ct. 2024, 2034 n.9, 64 L.Ed.2d 723 (1980). This standard of measure should not use the salaries paid to legal services attorneys as a guidepost because traditionally these salaries are not indicative of the true value of the services rendered. As this Court (Broderick, J.) observed in Becker v. Blum, supra, The value of legal services attorneys’ services are not reflected by their salary; the disparities between the salaries of legal services attorneys and private practitioners ‘usually reflect the relative poverty of legal services funding.’ Rodriguez v. Taylor, 569 F.2d 1231, 1248 (3d Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978). Legal services attorneys are paid (and accept) lower salaries in order that the limited funds available may generate the greatest possible volume of legal services for the needy. Since Section 1988 of Title 42 authorizes the award to the prevailing party of ‘a reasonable attorney’s fee,’ the salaries paid to legal services attorneys do not furnish acceptable guideposts. ‘[T]o the extent salary levels are" }, { "docid": "22633553", "title": "", "text": "Court’s use of Cravath rates to compensate these non-profit offices was so inordinately generous as to be unreasonable. In so ruling we do not suggest that the public interest lawyers who represented the Willowbrook class in this case are in any way less skilled or dedicated than Cravath’s lawyers. We have simply found that compensating these non-profit lawyers at Cravath rates would constitute a substantial windfall for the organizations involved. Windfalls are explicitly proscribed in the legislative history of section 1988, and we conclude that any award that includes such a large windfall must be considered unreasonable. The “windfall” aspect of the fees that have been awarded could be eliminated by determining the cost that each non-profit law office incurred to provide an hour of time of the various attorneys. Presumably, this calculation would involve dividing the attorney’s annual salary by his or her total number of productive hours per year and then adding a per-hour overhead cost, arrived at by dividing all non-salary costs for a year by the total of the productive hours in a year of all attorneys in the office. This cost-based approach would recognize that since the services of non-profit law offices are not allocated by a pricing mechanism, there is no real market billing rate that is precisely comparable for such offices. Indeed, cost-based fee awards have received increasing attention in recent years as an appropriate approach to all fee awards. See Copeland v. Marshall, supra, 641 F.2d at 908 (Wilkey, J., dissenting); Glover v. Johnson, 531 F.Supp. 1036 (E.D.Mich.1982); Page v. Preissner, 468 F.Supp. 399 (S.D.Iowa 1979); Alsager v. District Court of Polk County, 447 F.Supp. 572 (S.D.Iowa 1977). Alternatively, a modified cost-based approach could be used that would combine the non-profit office’s per-hour overhead cost with the value of an hour of an attorney’s time, the latter component to be derived from the salary an attorney of comparable skill and experience is paid by a private law firm. This approach would reduce the windfall inherent in the use of a private firm’s billing rate by. eliminating both the profit component and the" }, { "docid": "3359990", "title": "", "text": "F.2d 1024, 1026-27 (1st Cir. 1977), cert, denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978). Nevertheless, the defendants contend that the district court erred in failing to consider the salaries of the National Prison Project lawyers in Computing a reasonable fee. The district court understood the defendants to be arguing that the award for these lawyers’ services must be limited to the actual cost to the National Prison Project in litigating the plaintiffs’ lawsuits, as represented by the salaries paid counsel for the time spent on the cases. In rejecting this argument, the district court considered itself bound by decisions of this court, particularly Lund v. Affleck, 587 F.2d 75 (1st Cir. 1978) and Reynolds v. Coomey, 567 F.2d 1166 (1st Cir. 1978), to compensate counsel on the same basis as private practitioners. Palmigiano v. Garrahy, 466 F.Supp. 732, 736 (D.R.I.1979); Jefferson v. Southworth, C.A. No. 77-544, slip op. at 18 (D.R.I. February 22, 1979). In addition, it found no support in other case law or the legislative history of the Fees Act for computing fees differently for a public interest organization and thought that lesser compensation would undermine certain purposes of fee awards: to deter illegal conduct, to encourage private enforcement of civil rights laws, and to attract competent counsel. Palmigiano v. Garrahy, supra, 466 F.Supp. at 736. The court also noted that the National Prison Project was prevented by its work in the present cases from applying its resources to other civil rights litigation; it added that the fee award in these cases would help to finance other such lawsuits. Id. Because the district court relied substantially on first circuit cases in refusing to give weight to counsels’ salaries, we begin by reviewing our own precedent. In King v. Greenblatt, supra, 560 F.2d at 1026-28, we announced that we would require courts awarding fees under the Fees Act to consider the twelve factors listed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) and af firmed a fee award to private counsel that seemed reasonable under the Johnson criteria. A" } ]

[ { "docid": "23267178", "title": "", "text": "than $2,000; and (3) That the plaintiff in his petition had fraudulently stated the value of his land, the extent of his damages and the joint character of defendant’s action in entering and taking possession of his land, and had done this for the purpose of conferring jurisdiction upon the court. If. the last finding of fact was warranted by the evidence there is no néed of going further, because such a state of facts would demand a dismissal of the action. Ordinarily the plaintiff’s .claim with-'respect to the value of'the property taken from him or the amount of damages‘incurred by him through the defendants’ wrongful act measures for jurisdictional purposes the value of the matter in controversy, Smith v. Greenhow, 109 U. S. 669; Barry v. Edmunds, 116 U. S. 550; Scott v. Donald, 165 U. S. 58; Wiley v. Sinkler, 179 U. S. 58; unless, upon inspection of the plaintiff’s declaration, it appears that, as a matter of law, it is not possible for the plaintiff to recover the jurisdictional amount. Lee v. Watson, 1 Wall. 337; Schacker v. Hartford Fire Ins. Co., 93 U. S. 241; Vance v. Vandercook Company, 170 U. S. 468; North American Company v. Morrison, 178 U. S. 262. The rule that the plaintiff’s allegations of value govern, in determining the jurisdiction, except where upon the face of his own pleadings it is not legally possible for him to recover the jurisdictional amount, controls even where the declarations show that a perfect defense might be interposed to a sufficient amount of the claim to reduce it below the jurisdictional amount. Schunk v. Moline Co., 147 U. S. 500. In the last case the plaintiff’s petition prayed judgment on several promissory notes, of which some, amounting to $530, were due, and others, amounting to $1,664, were not due, the jurisdictional amount then, as now, being $2,000. In holding that the court had jurisdiction of the claim this court, by Mr^ Justice Brewer, said: “Although there might be a perfect defense to the suit for at least the amount not yet due, yet the fact" } ]

[ { "docid": "12334632", "title": "", "text": "That court, one judge dissenting, held that plaintiff was “a government agency engaged in the performance of functions of the Government” and that the assessments were void. Before findings and decree were approved and announced by that court, one of the district judges died, and another hearing was called before the present court. Jurisdiction Defendants contend that .since none of the four taxes alone exceeds $3,000 exclusive of interest and costs, the jurisdic tional amount required by 28 Ú.S.C.A. § 41(1) is not present, because plaintiff is not permitted to attain the jurisdictional amount by addition of the amounts involved in each cause of action. The pertinent part of the statute in question is as follows: “The district courts shall have original jurisdiction as follows: (1) • * * where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and (a) arises under the Constitution or laws of the United States * * * or (b) is between citizens of different States.” The statute does not state that each cause of action must exceed $3,000 exclusive of interest and costs. Assuming that each tax gave right to a separate cause of action, the same defendants in each cause are asserting the claim against the same plaintiff in each cause. Under such circumstances, the aggregate of the claims is the amount in controversy. Baltimore & O. S. W. R. Co. v. United States, 220 U. S. 94, 31 S.Ct. 368, 55 L.Ed. 384; Lilienthal v. McCormick (C.C.A.9) 117 F. 89, 95, 54 C.C.A. 475; Provident Mut. Life Ins. Co. v. Parsons (C.C.A.4) 70 F.(2d) 863; Yates v. Whyel Coke Co. (C.C.A.6), 221 F. 603, 137 C.C.A. 327; Heffner v. Gwynne-Treadwell Cotton Co. (C.C.A.8) 160 F. 635; Kimel v. Missouri State Life Ins. Co. (C.C.A. 10) 71 F.(2d) 921. Therefore, in the instant case, the amount in controversy exceeds $3,000 exclusive of interest and costs. Defendants originally contended that the suit was in reality against the state of Washington, and therefore this court had no jurisdiction. In the briefs submitted to us, defendant makes no" }, { "docid": "16042640", "title": "", "text": "exceeds, exclusive of interest or cost, the sum or value of $3,000, and of all controversies in which there is a separable controversy involving such jurisdictional amount and in which all of the parties on either side of such separable controversy are citizens or subjects of the character aforesaid. * * *” In construing the section, the Court of Appeals for the First Circuit, after reviewing the history of the various Acts defining the jurisdiction of this court, came to the conclusion that the Organic Act of 1917 “enlarges the classes of citizenship upon which the diversity jurisdiction of the District Court for Puerto Rico is based, over and above the diversity jurisdiction conferred generally upon district courts of the United States by § 24 of the Judicial Code * * *.” Ferrocarriles Del Este v. Bowie, 136 F.2d 527, at page 529. Thus under this enlarged or additional jurisdiction, not vested in the District Courts by Sec. 1332 of Title 28 U.S.C.A., it was held that this Court had jurisdiction of an action by a Spanish citizen not domiciled in Puerto Rico against a Canadian Corporation wherein the matter in controversy exceeded $3,000. Sanfeliz v. Bank of Nova Scotia, 1 Cir., 74 F.2d 338. See, also, Porto Rico Ry., Light & Power Co. v. Cognet, 1 Cir., 3 F.2d 21, and Porto Rico Ry., Light & Power Co. v. Mor, 253 U.S. 345, 40 S.Ct. 516, 64 L.Ed. 944. Under section 1332, Federal District Courts have no jurisdiction of suits between aliens, where no federal question is involved. Montalet v. Murray, 4 Cranch 46, 2 L.Ed. 545; Doidge v. Cunard S.S. Co., 1 Cir., 19 F.2d 500; Tsitsinakis v. Simpson, Spence & Young, D.C., 90 F.Supp. 578; Kavourgias v. Nicholaou Co., 9 Cir., 148 F.2d 96, 97. Under section 863, Title 48 U.S.C.A., this Court has such jurisdiction if all of the parties on either side of the controversy are not domiciled in PuertoRico. Also, under the same section, this-Court would have jurisdiction over a controversy between two citizens of the same-state, if all of the parties on either" }, { "docid": "15860017", "title": "", "text": "defense. Upton v. McLaughlin, 105 U.S. 640, 26 L.Ed. 1197; Schunk v. Moline, Milburn & Stoddart Co., supra; Smithers v. Smith, 204 U.S. 632, 27 S.Ct. 297, 51 L.Ed. 656. In the last cited case, the Supreme Court said, 204 U.S. at page 644, 27 S.Ct. at page 300, that when a plaintiff in good faith asserts a claim in an amount within the jurisdiction of the Court, the Judge is forbidden “to interpose and try a sufficient part of the controversy between the parties to satisfy himself that the plaintiff ought to recover less than the jurisdictional amount, and to conclude, therefore, that the real controversy between the parties is con cerning a subject of less than the jurisdictional value.” In applying this test, it has been further recognized that while good faith is a salient factor, it alone does not control ; for if it appears to a legal certainty that the plaintiff cannot recover the jurisdictional amount, the case will be dismissed for want of jurisdiction. Such is the doctrine laid down in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845. However, the legal impossibility of recovery must be so certain as virtually to negative the plaintiff’s good faith in asserting the claim. If the right of recovery is uncertain, the doubt should be resolved, for jurisdictional purposes, in favor of the subjective good faith of the plaintiff. In certain of the older cases, a somewhat different statement of the rule is found. It was formerly said that “if, from the nature of the case as stated in the pleadings, there could not legally be a judgment for an amount necessary to fhe jurisdiction, jurisdiction cannot attach.” Vance v. W. A. Vandercook Co., 170 U.S. 468, 18 S.Ct. 645, 647, 42 L.Ed. 1111. The possible difference between the two formulations was the subject of some discussion in Calhoun v. Kentucky-West Virginia Gas Co., 6 Cir., 166 F.2d 530, but the difference may be more apparent than real. Cf. Scott v. Donald, supra, 165 U.S. at page" }, { "docid": "23526477", "title": "", "text": "was within a short distance of the place where she was struck, without exercising any care or diligence to inform herself as to the proximity of the said car or to protect herself from injury.” Defendant also filed a motion that the court dismiss the complaint, for the reason that upon all the evidence, as a matter of law, plaintiffs were, at the time of the injury complained of and at the time this suit was brought, domiciled in the island of Porto Rieo. Both motions were denied by the court and exceptions taken by the defendant, and this is assigned as error. Errors are also assigned because of the admission of evidence, the court’s refusal to give requested instructions, and the giving of certain instructions. Under Act March 2, 1917, c. 145; 39 Stat. 951, 965 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3803qq), commonly called the “Jones Act,” the jurisdiction of the United States District Court of Porto Rico is limited as follows: “Said District Court shall have jurisdiction of all controversies where all of the parties on either side of the controversy are citizens or subjects of a foreign slate or states, or citizens of a state, territory, or district of the United States not domiciled in Porto Rieo, wherein the matter in dispute exceeds, exclusive of interest or cost, the sum or value of $3,000.” In Porto Rico Light and Power Co. v. Mor, 253 U. S. 345, 40 S. Ct. 516, 64 L. Ed. 944, the Supreme Court has held that the restrictive phrase “not domiciled in Porto Rico” is applicable to aliens as well as Americans. Whether the plaintiffs were domiciled in Porto Rieo or not was submitted to the jury with careful instructions which, in substance, were requested by the defendant. There was evidence from which the jury could have found that the plaintiffs came from the island of Guadalupe to Porto Rico about 13 years before the accident, with the intention of returning to Guadalupe; that at the time the wife received her injuries she and her husband bad made" }, { "docid": "17880396", "title": "", "text": "affirmative defense, however, cannot affect our diversity jurisdiction. Second, even if the October 10 contract should come into play, I do not think that it limits Pratt’s possible recovery to a legal certainty such that this case can be dismissed for want of subject matter jurisdiction. I. As the majority notes, the Supreme Court has stated that for a court to dismiss a diversity case for failure to satisfy the amount-in-controversy requirement, “[i]t must appear to a legal certainty that the claim is for less than the jurisdictional amount....” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). It is also true that the court’s inquiry into jurisdiction is not limited to the face of the complaint. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Roman v. United States Postal Service, 821 F.2d 382, 385 (7th Cir.1987); Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979); see also Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir.1995). The mere allegation of jurisdictional facts does not guarantee a litigant her day in court if the district court determines that those facts do not exist. However, that same line of cases also requires that any inquiry into the jurisdictional amount cease at the boundaries of the complaint. A possible defense, however good and likely to be pleaded in response to the complaint, does not matter. Smithers v. Smith, 204 U.S. 632, 642, 27 S.Ct. 297, 299, 51 L.Ed. 656 (1907); Schunk v. Moline, Milburn & Stoddard Co., 147 U.S. 500, 505, 13 S.Ct. 416, 417, 37 L.Ed. 255 (1893); 14A Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and PROCEdure § 3702 at 33-35 (West, 2d ed. 1985); see also St. Paul Mercury, 303 U.S. at 289, 58 S.Ct. at 590 (“The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction. Nor does the fact that the complaint discloses the existence of" }, { "docid": "15730571", "title": "", "text": "of either or when the right of a party may be sustained by one construction or defeated by another. Cohens v. Virginia (1821) 6 Wheat. 264, 5 L.Ed. 257; Osborn v. Bank of United States (1824) 9 Wheat. 738, 6 L.Ed. 204; Tennessee v. Davis (1879) 100 U.S. 257, 25 L.Ed. 648; Macon Grocery Company v. Atlantic Coast Line Railroad Co. (1910) 215 U.S. 501, 30 S.Ct. 184, 54 L.Ed. 300. An action such as this which questions orders made by officers of the United States pursuant to an act of the Congress, and which seeks to enjoin their enforcement, comes clearly within the rules laid down by these cases. But that alone is not sufficient to confer jurisdiction upon this court. For the Congress of the United States, in the exercise of the constitutional .power conferred upon it, has added another requirement to jurisdiction by providing that district courts shall have original jurisdiction of “all suits of a civil nature, at common law or in equity, * * * where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and (a) arises under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority.” (28 U.S.C.A. § 41 (1). Two requirements are thus necessary: (1) That the case arise under the Constitution or laws of the United States; and (2) that the matter .in controversy exceed the jurisdictional minimum of $3,000. See, Dobie on Federal Procedure (1928) § 59, pp. 163, 164; Fishback v. Western Union Telegraph Company (1896) 161 U.S. 96, 16 S.Ct. 506, 40 L.Ed. 630; Simpson v. Geary (D.C.Ariz.1913) 204 F. 507, 510; Delpit v. United States Shipping Board E. F. Corporation (C.C.A.9, 1927) 19 F.(2d) 60; National Lock Co. v. Chicago Regional Labor Board (D.C.Ill.1934) 8 F.Supp. 820. It is asserted on the part of the plaintiffs that the matter in controversy here does not exceed the jurisdictional amount. The plaintiffs’ attack is not directed at the validity of the Taylor Grazing Act or of the other regulations made by" }, { "docid": "23606839", "title": "", "text": "by the Supreme Court May 18, 1936, in the case of Paul V. McNutt, etc., et al. v. General Motors Acceptance Corp., 56 S.Ct. 780, 782, 80 L.Ed. -. The Supreme Court there considered and commented upon the decision rendered by this court in 1909 in the case of Hill v. Walker, 167 F. 241, which has been consistently followed in this and other circuits; Jeffrey-Nichols Motor Co. v. Hupp Motor Car Corp. (C.C.A.) 41 F.(2d) 767; United States v. Kiles (C.C.A.) 70 F.(2d) 880; Vincent v. United States, 64 App.D.C. 178, 76 F.(2d) 428, 429; United States v. Wilson (C.C.A.) 78 F.(2d) 465, 466; United States v. Ellison (C.C.A.) 74 F.(2d) 864. It might have been contended under the authority of those precedents that we need not notice the manifest lack of jurisdiction of the trial court to entertain this plaintiff’s suit or to award to the plaintiff recovery of the $960 piece of land, or the proceeds of a sale thereof. But the decision in the McNutt Case, supra, makes it very plain that in such a case as is here presented we should take notice of the affirmative undisputed proof in the record that the amount in controversy was insufficient to confer jurisdiction upon the District Court. The McNutt Case was a suit for injunction, and it was duly alleged in the bill that the matter in controversy exceeded the sum or value of $3,000, but the plaintiff failed to prove the allegations upon which the conclusion as to the amount in controversy was based. The Supreme Court said : “The jurisdiction of the District Court in a civil suit of this nature is definitely limited by statute to one — ‘where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,-000, and (a) arises under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or (b) is between citizens of different States, or (c) is between citizens of a State and foreign States, citizens, or subjects.’ Jud.Code, § 24 (1)," }, { "docid": "10321573", "title": "", "text": "1940, the defendant’s motion for summary judgment will be sustained, and judgment of dismissal entered thereon, with exception to the plaintiff. (b). But the court can not follow the defendant on the next step to which it is invited; for it considers that its jurisdiction remains unimpaired by the present dismissal of the second cause of action of the complaint, although the aggregate amount recoverable under the remaining seven causes of action is slightly less than $3,000.00. In cases where jurisdiction is derived from diversity of citizenship coupled with a controversy involving a statutory minimum amount, it is the sum actually claimed in good faith by the plaintiff when he files his complaint which determines the jurisdiction of the court and the fact that the plaintiff may not succeed in recovering all that he seeks in good faith will not affect the jurisdiction of the court. Upton v. McLaughlin, 105 U.S. 640, 26 L.Ed. 1197; Schunk v. Moline, etc., Co., 147 U.S. 500, 13 S.Ct. 416, 37 L.Ed. 255; Smithers v. Smith, 204 U.S. 632, 27 S.Ct. 297, 51 L.Ed. 656; Hardin v. Cass County, C.C., 42 F. 652; Washington County v. Williams, 8 Cir., 111 F. 801; Board of County Commissioners v. Vandriss, 8 Cir., 115 F. 866; Service Finance Corporation v. Coppard, 5 Cir., 116 F.2d 488. Citations in great number might be added, but there seems to be no dissent upon the suggested point. It is true that where, through bad faith elements or causes of action are introduced for the manifest purpose of inflating a claim to a point above the jurisdictional minimum, jurisdiction will be denied. Bank of Arapahoe v. David Bradley 6 Co., 8 Cir., 72 F. 867. “By good faith is meant that the sum demanded in the pleading is the real matter put m dispute, and not so clearly fictitious as to make it legally certain that the amount alleged was merely to confer jurisdiction because clearly beyond reasonable expectation of recovery.” Miller Crenshaw Co. v. Colorado Mill & Elevator Co., 8 Cir., 84 F.2d 930, 932. Both as a general legal" }, { "docid": "17869229", "title": "", "text": "GARDNER, Circuit Judge. This is an action at law brought by appellee as plaintiff, to recover damages for breach of certain contracts for the purchase of flour. For convenience, we shall refer to the parties as they appeared below. At the close of all the evidence, both sides moved for a directed verdict, and the court granted the motion of plaintiff, and directed the jury to return a verdict for $2,789.69. From the judgment entered on that verdict, defendant prosecutes this appeal. Both parties having moved for a directed verdict, all disputed questions of fact were submitted to the court and both parties are concluded by its findings. We are limited to a consideration of the correctness of the court’s conclusion on the law, and must affirm the judgment if there is any substantial evidence to support it. Such action by the parties is equivalent to a declaration that there are no disputed questions of fact, or a request that the trial judge find the facts. Williams v. Vreeland, 250 U.S. 295, 39 S.Ct. 438, 63 L.Ed. 989, 3 A.L.R. 1038; Beuttell v. Magone, 157 U.S. 154, 15 S.Ct. 566, 39 L.Ed. 654; Sena v. American Turquoise Co., 220 U.S. 497, 31 S.Ct. 488, 55 L.Ed. 559; American Surety Co. v. Republic Casualty Co. (C.C.A.8) 42 F.(2d) 807; Southern Surety Co. v. Fidelity & Casualty Co. (C.C.A.8) 50 F.(2d) 16; Springfield Fire & Marine Ins. Co. v. National Fire Ins. Co. (C.C.A.8) 51 F.(2d) 714, 76 A.L.R. 1287; Detroit Fidelity & Surety Co. v. United States (C.C.A.8) 59 F.(2d) 565; New York Life Ins. Co. v. McCreary (C.C.A.8) 60 F.(2d) 355. The verdict in this case must, therefore, be given the same effect as a verdict regularly returned by the jury. As its first assignment of error, defendant urges that the court erred in refusing to dismiss the suit for want of jurisdiction at the close of all the testimony, because, it is alleged, counsel for plaintiff, by permission of the court, amended its complaint so as to show that the amount in controversy was less than $3,000, exclusive of" }, { "docid": "11550509", "title": "", "text": "diminish the amounts of their claims for monetary damages by anticipating the government’s possible set-offs and counter demands. We perceive substantial deficiencies in plaintiffs’ proposed formula for computing the amount of their claims for Tucker Act purposes. Under the traditional, majority rule for ascertaining jurisdictional amount in federal question and diversity litigation, the possibility of government set-offs and other demands are as irrelevant as the appearance of a valid defense reducing the amount claimed or the occurrence of an event subsequent to the complaint affecting the amount in controversy. See e. g., Schunk v. Moline, Milburne & Stoddart Co., 147 U.S. 500, 13 S.Ct. 416, 37 L.Ed. 255 (1893); Anderson v. Moorer, 372 F.2d 747 (5th Cir. 1967); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Smithers v. Smith, 204 U.S. 632, 27 S.Ct. 297, 51 L.Ed. 656 (1907); Tising v. Flanagin, 360 F.Supp. 283 (E.D.Wisc.1973); McDonald v. Patton, 240 F.2d 424 (4th Cir. 1957); Kansas City Philharmonic Ass’n v. Greyhound Lines, 257 F.Supp. 941 (W.D.Mo.1966); Umbenhouser v. Mutual of Omaha Ins. Co., 298 F.Supp. 927 (W.D.Mo.1969); Burton Lines, Inc. v. Mansky, 265 F.Supp. 489 (M.D.N.C.1967); Continental Carriers, Inc. v. Goodpasture, 169 F.Supp. 602 (M.D.Ga.1959); West Virginia State Bar v. Bostic, 351 F.Supp. 1118 (S.D.W.Ya.1972); 1 Moore’s Fed.Practice ¶ 0.92[1]. Embodied in this principle is basic practicality. Jurisdictional determinations would otherwise have to await the outcome of trial on the merits in which counterclaims, set-offs, etc. may or may not be raised and, even if raised, may ultimately be demonstrated to be invalid. 1 Moore’s Fed.Practice ¶ 0.92[1]. The language of the Tucker Act and related code provisions strongly suggest resort to similar principles in the present actions. As previously mentioned, the Tucker Act, 28 U.S.C. § 1346(a)(2), confers upon the district courts original jurisdiction, concurrent with the Court of Claims, over certain “civil action[s] or claim[s] against the United States, not exceeding $10,000 in amount.” The Act further provides, in pertinent part, that The jurisdiction conferred by this section includes jurisdiction of any set-off, counterclaim, or other claim" }, { "docid": "15758578", "title": "", "text": "Nashville Ry. Co., 207 U.S. 205, 28 S.Ct. 91, 52 L.Ed. 171, 12 Ann.Cas. 693; Hunt v. New York Cotton Exchange, 205 U.S. 322, 27 S.Ct. 529, 51 L.Ed. 821; Gallardo v. Questell (C.C.A.) 29 F.(2d) 897.” It appears to us that the complainants come within the above-mentioned rule. The state is not demanding that the complainants pay a tax. There is no tax they can pay which would stop the operation of the statute against them. The state threatens to suppress their business and forfeit their property because a third party over whom they have no control has refused to pay an alleged illegal exaction. Their right to retain their property and continue their business is at stake and the value thereof is the measure of the amount in controversy. In the case of Packard v. Banton, 264 U.S. 140, 44 S.Ct. 257, 68 L.Ed. 596, it is held that the amount in controversy, in a suit to enjoin enforcement of a statute alleged to be unconstitutional in relation to the plaintiffs’ business, is the value of the right to carry on the business free from the restraint of the statute. Scott v. Donald, supra, and cases cited. On both reason and authority we hold that the respondents’ motion to dismiss for want of jurisdictional amount should be overruled. Adequate Remedy at Law. The second issue raised by the respondents is that the complainants have a plain and adequate remedy at law. This point calls for no extended discussion. Injunctive relief is sought on the ground of the unconstitutionality of a state law. Decisions are numerous that hold that,- if a state through its administrative officers attempts to enforce the provisions of an act passed by the State Legislature that contravenes the Federal Constitution, a court of equity may intervene for the purpose of preventing irreparable injury because there is no adequate remedy at law. Scott v, Donald, supra; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R.A.(N.S.) 932, 14 Ann.Cas. 764. Does bill allege grounds cognizable in a court of equity? The next" }, { "docid": "21494972", "title": "", "text": "sum claimed by the plaintiff in good faith; it is not the amount that he ultimately recovers. Wiley v. Sinkler, 179 U.S. 59, 65, 21 S.Ct. 17, 45 L.Ed. 84; Chesbrough v. North Trust Co., 252 U.S. 83, 40 S.Ct. 237, 64 L.Ed. 470. See also Barry v. Edmunds, 116 U.S. 550, 6 S.Ct. 501, 29 L.Ed. 729, where plaintiff’s property had been levied upon and carried away for a tax of $56.34; and the court said: “The plaintiff is not limited in his recovery to the mere value of the property taken. That would not necessarily cover his actual, direct, and immediate pecuniary loss.” A valid defense to a cause of action, apparent on the face of the complaint, does not diminish the amount that is claimed, nor determine what is the matter in dispute. Schunk v. Moline, Milburn & Stoddart Co., 147 U.S. 500, 505, 13 S.Ct. 416, 37 L.Ed. 255; Smithers v. Smith, 204 U.S. 632, 642, 27 S.Ct. 297, 51 L.Ed. 656, 659. The amount recovered or the failure of the plaintiff to recover anything does not determine jurisdiction. Scott v. Donald, 165 U.S. 58, 17 S.Ct. 265, 41 L.Ed. 632. The motion for a directed verdict in the court below was based on two grounds: first, that no proof of trespass had been shown; second, that no proof of damage had been shown up to the jurisdictional amount. The court ruled that the first ground of the defendant’s motion was not well taken, and that there was sufficient evidence on this point to warrant submission of the case to the jury. We concur in this ruling; but the court sustained the motion on the second ground and dismissed the complaint for want of federal jurisdiction. This ruling was based on the ground that there was no evidence on which the jury could determine the amount of plaintiff’s damages, other than his own statement of $2.00 per acre, plus one dollar rental. As the number of acres involved was only 800, the court held that the jurisdictional amount was lacking. We think that the wrong test" }, { "docid": "15860016", "title": "", "text": "of the amount in controversy and determines the question of jurisdiction; and it is indisputably the law that if the ultimate recovery is for less than the amount claimed, this is immaterial on the question of jurisdiction. Scott v. Donald, 165 U.S. 58, 17 S.Ct. 265, 41 L.Ed. 632. From early days, the broad sweep of the rule has been subject to a qualification namely, that the plaintiff’s claim must appear to be made in good faith. Bowman v. Chicago & Northwestern Railway Co., 115 U.S. 611, 6 S.Ct. 192, 29 L.Ed. 502; Schunk v. Moline, Milburn & Stoddart Co., 147 U.S. 500, 505, 13 S.Ct. 416, 37 L.Ed. 255. Where it is plain that there is a mere pretense as to the amount in dispute, the amount of the claim will not avail to create jurisdiction, but where the plaintiff makes his claim in obvious good faith, it is sufficient for jurisdictional purposes; and this is so even where it is apparent on the face of the claim that the defendant has a valid defense. Upton v. McLaughlin, 105 U.S. 640, 26 L.Ed. 1197; Schunk v. Moline, Milburn & Stoddart Co., supra; Smithers v. Smith, 204 U.S. 632, 27 S.Ct. 297, 51 L.Ed. 656. In the last cited case, the Supreme Court said, 204 U.S. at page 644, 27 S.Ct. at page 300, that when a plaintiff in good faith asserts a claim in an amount within the jurisdiction of the Court, the Judge is forbidden “to interpose and try a sufficient part of the controversy between the parties to satisfy himself that the plaintiff ought to recover less than the jurisdictional amount, and to conclude, therefore, that the real controversy between the parties is con cerning a subject of less than the jurisdictional value.” In applying this test, it has been further recognized that while good faith is a salient factor, it alone does not control ; for if it appears to a legal certainty that the plaintiff cannot recover the jurisdictional amount, the case will be dismissed for want of jurisdiction. Such is the doctrine laid down" }, { "docid": "21494971", "title": "", "text": "303 U.S. 283, 289, 58 S.Ct. 586, 590, 32 L.Ed. 845, the court said: “It must appear to a legal certainty that the claim is really for less than the jursidictional amount to justify dismissal.” Dobie’s Federal Procedure says that the amount in controversy is always to be determined by the value to the plaintiff of the right that he in good faith asserts in his pleading, alleging the operative facts constituting his cause of action; and only the value of the right directly in issue in the particular suit, not the collateral effect of the judgment, may be considered in making up the necessary jurisdictional amount. Sec. 56, p. 133, 1928 Edition. See also 38 Harvard Law Review, p. 733. This is an action at law for a money judgment by an integral plaintiff against an integral defendant, and the amount in controversy is the amount of money sought in good faith to be recovered by the plaintiff. This is also an action for unliquidated damages, where the amount in controversy is ordinarily the sum claimed by the plaintiff in good faith; it is not the amount that he ultimately recovers. Wiley v. Sinkler, 179 U.S. 59, 65, 21 S.Ct. 17, 45 L.Ed. 84; Chesbrough v. North Trust Co., 252 U.S. 83, 40 S.Ct. 237, 64 L.Ed. 470. See also Barry v. Edmunds, 116 U.S. 550, 6 S.Ct. 501, 29 L.Ed. 729, where plaintiff’s property had been levied upon and carried away for a tax of $56.34; and the court said: “The plaintiff is not limited in his recovery to the mere value of the property taken. That would not necessarily cover his actual, direct, and immediate pecuniary loss.” A valid defense to a cause of action, apparent on the face of the complaint, does not diminish the amount that is claimed, nor determine what is the matter in dispute. Schunk v. Moline, Milburn & Stoddart Co., 147 U.S. 500, 505, 13 S.Ct. 416, 37 L.Ed. 255; Smithers v. Smith, 204 U.S. 632, 642, 27 S.Ct. 297, 51 L.Ed. 656, 659. The amount recovered or the failure of the" }, { "docid": "15860015", "title": "", "text": "ground and damaging the gas tank. Gasoline poured out and burst into flames, completely destroying the station wagon and its contents. The appellant sued the appellee, charging negligence in failing to tighten and secure the wheels properly. The damages alleged were slightly in excess of $3,000.00. On motion of the defendant, the plaintiff was required to furnish a bill of particulars, from which it appeared that the claim included two items upon which the dispute in this case is focused. The first is a “towing charge for burned vehicle, $14.00”; the second is “bus fare for three laborers and self from Brevard, North Carolina, to Miami, Florida, $67.-90.” If both items are deducted, the claim falls below $3,000.00; but if either may be included, the requisite jurisdictional amount is present. Before Answer, a motion to dismiss was filed and, the Court being of the opinion that neither of the two items was recoverable, the complaint was dismissed. It is the firmly established general rule of the federal courts that the plaintiff’s claim is the measure of the amount in controversy and determines the question of jurisdiction; and it is indisputably the law that if the ultimate recovery is for less than the amount claimed, this is immaterial on the question of jurisdiction. Scott v. Donald, 165 U.S. 58, 17 S.Ct. 265, 41 L.Ed. 632. From early days, the broad sweep of the rule has been subject to a qualification namely, that the plaintiff’s claim must appear to be made in good faith. Bowman v. Chicago & Northwestern Railway Co., 115 U.S. 611, 6 S.Ct. 192, 29 L.Ed. 502; Schunk v. Moline, Milburn & Stoddart Co., 147 U.S. 500, 505, 13 S.Ct. 416, 37 L.Ed. 255. Where it is plain that there is a mere pretense as to the amount in dispute, the amount of the claim will not avail to create jurisdiction, but where the plaintiff makes his claim in obvious good faith, it is sufficient for jurisdictional purposes; and this is so even where it is apparent on the face of the claim that the defendant has a valid" }, { "docid": "17880397", "title": "", "text": "1000, 1002-03 (10th Cir.1995). The mere allegation of jurisdictional facts does not guarantee a litigant her day in court if the district court determines that those facts do not exist. However, that same line of cases also requires that any inquiry into the jurisdictional amount cease at the boundaries of the complaint. A possible defense, however good and likely to be pleaded in response to the complaint, does not matter. Smithers v. Smith, 204 U.S. 632, 642, 27 S.Ct. 297, 299, 51 L.Ed. 656 (1907); Schunk v. Moline, Milburn & Stoddard Co., 147 U.S. 500, 505, 13 S.Ct. 416, 417, 37 L.Ed. 255 (1893); 14A Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and PROCEdure § 3702 at 33-35 (West, 2d ed. 1985); see also St. Paul Mercury, 303 U.S. at 289, 58 S.Ct. at 590 (“The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction. Nor does the fact that the complaint discloses the existence of a valid defense to the claim.”) Thus, [although there might be a perfect defense to the suit ..., yet the fact of a defense, and a good defense, too, would not affect the question as to what was the amount in dispute.... In short, the fact of a valid defense to a cause of action, although apparent on the face of the petition, does not diminish the amount that is claimed, nor determine what is the matter in dispute.... Schunk, 147 U.S. at 504-05, 13 S.Ct. at 417; see also Smith, 204 U.S. at 642-43, 27 S.Ct. at 300; Tongkook America, Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir.1994); Ochoa v. Interbrew America, Inc., 999 F.2d 626, 628-29 (2d Cir.1993); Jihaad v. O’Brien, 645 F.2d 556, 561 (6th Cir.1981); Worthams v. Atlanta Life Ins. Co., 533 F.2d 994, 997-98 (6th Cir.1976); James v. Lusby, 499 F.2d 488, 492 (D.C.Cir.1974); Riggins v. Riggins, 415 F.2d 1259, 1262 (9th Cir.1969); Anderson v. Moorer, 372 F.2d 747, 750 (5th Cir.1967); Burks v. Texas Co., 211" }, { "docid": "3732595", "title": "", "text": "Act of 2011 (\"JVCA”) may modify this procedure. See Pub.L. No. 112-63, 125 Stat. 758 (2011). The revised removal statute requires federal courts to consider state pleading practice before examining a defendant’s notice of removal for assertions of the amount in controversy. See 28 U.S.C. § 1446(c)(2). Because this case was filed before the statute’s effective date, we do not reach this issue. Also, any analogies between diversity and CAFA removals rely on our pre-JVCA precedent, particularly McPhail. . While this is the rule from McPhail, the JVCA likely requires a different approach, at least in diversity removals. See Pub.L. No. 112-63, 125 Stat. 758 (2011) (\"the sum demanded in good faith in the initial pleading shall be deemed to be the amount in controversy, except that ... the notice of removal may assert the amount in controversy if the initial pleading seeks ... (i) nonmonetary relief; or (ii) a money judgment, but the State practice either does not permit demand for a specific sum or permits recovery of damages in excess of the amount demanded.”). But again, the JVCA was not yet in effect when this case was filed, so we decline to apply it, even by analogy. . This is not to say that a removing defendant must show the plaintiff is entitled to punitive damages by a preponderance of the evidence. Such a requirement would require a court to improperly look beyond jurisdictional matters and consider the merits of the claims. See Smithers v. Smith, 204 U.S. 632, 645, 27 S.Ct. 297, 51 L.Ed. 656 (1907) (indicating that the amount in controversy inquiry is distinct from the merits); Schunk v. Moline, Milburn & Stoddard Co., 147 U.S. 500, 505, 13 S.Ct. 416, 37 L.Ed. 255 (1893) (same); Miedema v. Maytag Corp., 450 F.3d 1322, 1332 (11th Cir.2006) (\"When determining the amount in controversy for jurisdictional purposes, however, courts cannot look past the complaint to the merits.”); Meridian, 441 F.3d at 543 (\"[Ujncertainty about whether the plaintiff can prove its substantive claim, and whether damages (if the plaintiff prevails on the merits) will exceed the threshold, does not" }, { "docid": "11957861", "title": "", "text": "exclusive so as to forbid or prevent the maintenance by the United States of an equitable action, existing under general principles of law, to recover property diverted by him. United States v. Whited & Wheless, 246 U.S. 552, 38 S.Ct. 367, 62 L.Ed. 875; Cf. Dismuke v. United States, 297 U.S. 167, 172, 56 S.Ct. 400, 403, 80 L.Ed. 561; Shriver v. Woodbine Bank, 285 U.S. 467, 478, 52 S.Ct. 430, 434, 76 L.Ed. 884. The fact that the suit was erroneously docketed and treated by the parties as on the law side of the court, while misleading, should not have been determinative of the case; for under the Judicial Code, § 274a, section 397, title 28 U.S.C.A. the District Judge, the case having gone no further than a hearing on the demurrer, should have directed such amendment of the pleadings, if any, as was found necessary, and should have proceeded with the cause as one in equity, to determine the questions arising on the merits of the action. Liberty Oil Co. v. Condon Nat. Bank, 260 U.S. 235, 43 S.Ct. 118, 67 L.Ed. 232; Schoenthal v. Irving Trust Co., 287 U.S. 92, 53 S.Ct. 50, 77 L.Ed. 185; Cf. Wood v. Phillips (C.C.A.) 50 F.(2d) 714, at page 719; American Falls Milling Co. v. Standard B. & D. Co. (C.C.A.) 248 F. 487; Equitable Trust Co. v. Denver & R. G. R. Co. (C.C.A.) 250 F. 327; Central Florida Lumber Co. v. Taylor-Moore Syndicate (C.C.A.) 51 F.(2d) 1; Diamond Alkali Co. v. P. C. Tomson & Co. (C.C.A.) 35 F.(2d) 117; Clarksburg Trust Co. v. Commercial Casualty Ins. Co. (C.C.A.) 40 F.(2d) 626; Cf. Irons v. Smith (C.C.A.) 62 F. (2d) 644. I respectfully dissent. “§ 106. Unclaimed dividends. (a) Dividends which remain unclaimed for six months after the final dividend has been declared shall be. paid by the trustee into court. “(b) Dividends remaining unclaimed for one year shall, under the direction of the court, be distributed to the creditors whose claims have been allowed but not paid in full, and after such claims have been paid in" }, { "docid": "21538083", "title": "", "text": "court’s ruling on that question if it were properly before us; but we are compelled to hold that the only question we have to decide is whether the . District Court had jurisdiction' of this case. Though not raised by the parties, this quesr tion is necessarily before us and must be decided. Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338; Southern Pacific Co. v. McAdoo (C.C.A.9) 82 F.2d 121; Electro Therapy Products Corp. v. Strong (C.C.A.9) 84 F.2d 766, 767. The District Court’s jurisdiction, if it had any, was conferred by sections 24(1) and 274d of the Judicial Code, as amended, 28 U.S.C.A. §§ 41(1), 400. Section 24(1) provides that District Courts shall have original jurisdiction: “Of all suits of a civil nature, at common law or in equity, brought by the United States, or by any officer thereof authorized by law to sue, or between citizens of the same State claiming lands under grants from different states; or, where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and (a) arises under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or (b) is between citizens of different States, or (c) is between citizens of a State and foreign States, citizens, or subjects.” Section 274d (commonly known as the Federal Declaratory Judgment Act) provides: “In c.ases of actual controversy except with respect to Federal taxes the courts of the United States shall have power upon petition, declaration, complaint, or other appropriate pleadings to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such.” This is a suit of a civil nature in equity, and arises under the Constitution and laws of the United States, but it was not brought by the' United States or by any officer thereof, and is not" }, { "docid": "2954990", "title": "", "text": "the mineral lessees or their assignees, who defend the validity of the mineral leases. These defendants are all citizens of states other than Michigan, and as to them there is diversity. These defendants argue that the plaintiff's allegation of jurisdictional amount is not sufficient. The plaintiff has alleged that more than $10,000 is in issue, and such allegation, if in good faith, is sufficient unless it appears to a legal certainty that recovery cannot exceed the jurisdictional amount. St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845. Olan Mills, Inc., of Tenn. v. Enterprise Publishing Co., 5 Cir. 1954, 210 F. 2d 895. Compare Matthiesen v. Northwestern Mutual Insurance Co., 5 Cir. 1961, 286 F.2d 775. The defendants argue, however, that the certain futility of the plaintiff’s case shows that this controversy is worth less than $10,000. The defendants, in seeking to demonstrate such futility, point to the Alabama adjudication of the plaintiff’s interest as foreclosing recovery here. But the probability of a valid factual defense (here, a defense of res judicata) is not sufficient to diminish the amount in controversy and to oust the court of jurisdiction, even if that defense appears on the face of the complaint. St. Paul Mercury Indemnity Co. v. Red Cab Co., supra; Schunk v. Moline, Milburn & Stoddart Co., 1893, 147 U.S. 500, 13 S.Ct. 416, 37 L.Ed. 255; Burks v. Texas Co., 5 Cir. 1954, 211 F.2d 443; see Harris v. Illinois Central R. Co., 5 Cir. 1955, 220 F.2d 734. The remaining defendants next claim that the Michigan defendants (as to whom there is no diversity) must be joined in any suit involving the validity of the leasehold interests, (F.R.Civ.P. 19) and that, as the Michigan defendants are no longer in the suit, the entire case must be dismissed. This argument holds true only insofar as. the remedy of .cancellation is concerned. In order to seek cancellation of a lease, all of the parties holding a part of the lessor’s interest must be joined. But the plaintiff here (whose co-tenants in" } ]

[ { "docid": "23556228", "title": "", "text": "separately these two appeals, we note that the complaints in each underlying action were filed pro se, and, as did the district court, we find them somewhat difficult to track. No. 83-2426 (Privacy Act) As stated, the district court granted summary judgment in favor of the Department of Commerce as concerns Bergman’s cause of action based on the Privacy Act. The gist of Bergman’s initial complaint was that the Department refused his request to amend and “correct” retroactively his employment records. 5 U.S.C. § 552a(g)(l)(C) allows an individual to sue whenever an agency fails to maintain an employment record “with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to ... benefits to the individual----” 5 U.S.C. § 552a(g)(l), (5) provides that an action under the section may be brought “within two years from the date on which the cause of action arises.” In ascertaining when Bergman’s cause of action arose, the district court held that it arose at the time: 1) an error was made in maintaining Bergman’s records; 2) Bergman was wronged by such error; and 3) Bergman either knew or had reason to know of such error. The district court held that in the instant case all three conditions were met, at the very latest, on October 25, 1977, when the Department notified Bergman in writing that the Department could not retroactively classify job positions, grant him “monetary relief,” or pay his legal fees or other expenses, or otherwise reconsider the 1973 Reduction in Force discharge. The underlying action in No. 83-2426 was not instituted until October 7, 1982, almost five years after the letter was sent to Bergman by the Department. We find no error in the district court’s analysis of this matter. In support of the action taken, see Oppenheim v. Campbell, 571 F.2d 660 (D.C.Cir.1978), where the D.C. Circuit held that a similar action, though not identical to the one asserted here by Bergman, arose when the plaintiff’s “right to resort to federal court was perfected.” See also R.R. v. Department of Army, 482 F.Supp. 770, 774," } ]

[ { "docid": "17631606", "title": "", "text": "1981. Whether Davis is correct is an issue we need not decide, however, since subsection (c) of § 1981 states that “[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.” (emphasis added). Thus, by its language, § 1981 does not apply to actions taken under color of federal law. See Lee v. Hughes, 145 F.3d 1272, 1277 (11th Cir. 1998); Williams v. Glickman, 936 F.Supp. 1, 3-5 (D.D.C.1996). Davis has specified that he is suing the defendants in their capacity as federal employees for actions authorized by the Fair Housing Act. Thus, the alleged § 1981 violations for which Davis seeks redress all took place under color of federal law and are not actionable under § 1981. In addition to his § 1981 claims, Davis also alleges that the individually named defendants violated his rights under 42 U.S.C. §§ 1985(3) and 1986. Sovereign immunity, however, bars §§ 1985(3) and 1986 suits brought against the United States and its officers acting in their official capacity. See Affiliated Professional Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir.1999). Because Davis has chosen to sue the defendants only in their official capacity, his claims are barred. Davis next claims that the district court erroneously dismissed his Privacy Act claim for failure to exhaust administrative remedies. For Davis’s Privacy Act claim to survive dismissal, however, he must have brought it within the two-year statute of limitations. 5 U.S.C. § 552a(g)(5). The statute of limitations starts to run when the plaintiff first knew or had reason to know of a violation. See Bowyer v. United States Dept. of Air Force, 875 F.2d 632, 635 (7th Cir.1989); see also Diliberti v. United States, 817 F.2d 1259, 1262 (7th Cir.1987). A Privacy Act claim is not tolled by continuing violations. See Diliberti, 817 F.2d at 1261. Davis claims that HUD attorney Crowder filed a Charge of Discrimination against him on January 17, 1996 based upon records improperly obtained from Brooks-Pittman and a falsified Final Investigative Report prepared by Burks. He also alleges that" }, { "docid": "16489054", "title": "", "text": "Act claim was time-barred and that, because the Privacy Act provides a comprehensive remedial scheme for harm caused by governmental disclosure of personal information, it was inappropriate for a court to imply a constitutional remedy for such disclosure under 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). Chung appeals both aspects of the district court’s ruling, but only our resolution of his Privacy Act issue merits treatment in a published opinion. II. Analysis Section 552a(b) of the Privacy Act, with certain exceptions not relevant here, prohibits a federal agency from releasing information about a person without his consent. 5 U.S.C. § 552a(b). The Act further provides: An action to enforce any liability created under this section may be brought ... within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so .misrepresented is material to the establishment of the liability of the agency ... the action may be brought at any time within two years after discovery ... of the misrepresentation. 5 U.S.C. § 552a(g)(5). The parties agree Chung’s claim arose in May 1998 when the press reports containing leaked information appeared. Chung did not file his lawsuit until August 2000, a little more than two months after the two-year deadline in the Privacy Act. We must decide whether Chung’s failure to meet the statutory filing deadline can (and, if so, should) be excused, as Chung claims, because he could not sue the Government, without jeopardizing his bid for leniency, until after he was sentenced in December 1998. A. Equitable tolling of the Privacy Act limitation In litigation between private parties, courts have long invoked waiver, estoppel, and equitable tolling to ameliorate the inequities that can arise from strict application of a statute of limitations. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 457, 112 L.Ed.2d 435 (1990). The applicability of those" }, { "docid": "1025406", "title": "", "text": "an individual, the individual may bring a civil action against the agency....” Section 552a(g)(4) predicates an award of monetary damages for a violation of § 552a(g)(l)(D) on “the court determining] that the agency acted in a manner which was intentional or willful.” (Emphasis added). Oja asserts that this reference to “willfulness]” brings his claim within the exception to the statute of limitations provision, Section 552a(g)(5). That section states, in relevant part, that An action to enforce any liability created under this section may be brought ... within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual under this section, the action may be brought at any time within two years after discovery by the individual of the misrepresentation. Id. (emphasis added). Thus, Oja asserts that the statute of limitations for his original Privacy Act claims did not begin to run until October 2001, placing them well within the limitations period. “The Privacy Act’s statute of limitations commences when the person knows or has reason to know of the alleged violation. Because the accrual of the statute of limitations in part turns on what a reasonable person should have known, we review this mixed question of law and fact for clear error.” Rose v. United States, 905 F.2d 1257, 1259 (9th Cir.1990) (internal citations omitted); see also Englerius v. Veterans Admin., 837 F.2d 895, 898 (9th Cir.1988) (“We join the Seventh, Tenth and District of Columbia Circuits in holding that a cause of action under the Privacy Act does not arise and the statute of limitations does not begin to run until the plaintiff knows or has reason to know of the alleged violation.”). To the extent that Oja avers that he was unaware that the USACE intentionally or willfully disclosed his personal information, we find that the record substantiates the magistrate judge’s finding that Oja knew or" }, { "docid": "17292979", "title": "", "text": "courts of subject matter jurisdiction over the action.” Diliberti v. United States, 817 F.2d 1259, 1262 (7th Cir.1987). A cause of action arises under the Privacy Act at the time that, (1) an error was made in maintaining plaintiffs records; (2) plaintiff was harmed by the error; and (3) the plaintiff either knew or had reason to know of the error. See Bergman v. United States, 751 F.2d 314, 317 (10th Cir.1984); see also Tijerina v. Walters, 821 F.2d 789, 798 (D.C.Cir.1987) (holding that the statute of limitations begins to run when plaintiff knew, or should have known of the alleged violation). Under this standard it is clear that plaintiffs claim is time barred. The prehearing assessment report is dated June 12, 1991, which is the latest date that an error could have been made in the documents that plaintiff challenges. If plaintiff was harmed by any errors in the documents, the harm occurred as a result of the August 9,1991 parole decision. Plaintiff claims that he knew or had reason to know of the error(s) in June 1993. The record shows however, that plaintiff knew or should have known of alleged violation at the latest by August 23, 1991. Because plaintiff did not file suit until February, 1994, the suit is not timely. The record shows that plaintiff knew or should have known about all the information that he maintains is incorrect by August 23, 1991. Plaintiff asserts that he is innocent of the 1988 prison drug infraction that is cited in the June 3, 1991 institutional progress report. Plaintiff reviewed this document on June 4, 1991 yet did not file this suit until 1994. The other information that plaintiff maintains is incorrect is in his 1987 presen-tence report and the June 12, 1991 prehear-ing assessment. This Court finds for two reasons that plaintiff knew or should have known of the information in those documents that he claims are incorrect more than two years before he filed suit. First, on May 7, 1991 plaintiff waived his right to inspect the files that were to be considered by the parole" }, { "docid": "15708077", "title": "", "text": "OPINION OF THE COURT BECKER, Chief Judge. This is an action by plaintiff Johnnie E. Green against Army Secretary Thomas E. White (“the Secretary”) seeking correction of Green’s military records. Because the District Court erred in finding that Green’s suit is time-barred, we reverse the order of the District Court dismissing the suit and remand for further proceedings. I. The case stems from Green’s 1950 discharge from the United States Army. Green entered Army service in January 1949 and was honorably discharged in December of the same year. He re-enlisted and served from December 1949 to July 1950. On July 7, 1950 Green was reported absent without official leave (“AWOL”) as of the previous day. He returned to duty on July 8th. As a result of his going AWOL, the Army dropped Green in rank and, on July 31,1950, gave him an undesirable discharge. Green asserts that his discharge “hearing” was perfunctory. He met with his First Sergeant and a Second Lieutenant. The Sergeant told Green he had “too many delinquent reports,” and asked him how he pleaded. Green responded that he pleaded “guilty with an explanation,” and he was then told to wait outside for a decision. When Green was called back in ten minutes later, the Sergeant told him that he had “pleaded guilty to being a delinquent person. And it is the decision of this Board that you be discharged, as an Undesirable Person.” The Army duly gave Green a “blue” discharge, which is a less-than-honorable discharge that deprives Green of most veterans’ rights. Thirty-one years later, in 1981, Green applied to the Army Discharge Review Board (“ADRB”) for review of his discharge and requested that his “Undesirable Discharge” be upgraded to “Honorable.” The Review Board rejected Green’s application and he then applied to the Army Board for Correction of Military Records (“ABCMR”) for review of this decision. In 1982 the ABCMR upheld the ADRB’s decision. Green filed petitions for reconsideration of the ABCMR’s ruling in 1983 and 1986 and was rejected on both occasions for a failure to submit new evidence. In May 1999, Green again" }, { "docid": "17631607", "title": "", "text": "See Affiliated Professional Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir.1999). Because Davis has chosen to sue the defendants only in their official capacity, his claims are barred. Davis next claims that the district court erroneously dismissed his Privacy Act claim for failure to exhaust administrative remedies. For Davis’s Privacy Act claim to survive dismissal, however, he must have brought it within the two-year statute of limitations. 5 U.S.C. § 552a(g)(5). The statute of limitations starts to run when the plaintiff first knew or had reason to know of a violation. See Bowyer v. United States Dept. of Air Force, 875 F.2d 632, 635 (7th Cir.1989); see also Diliberti v. United States, 817 F.2d 1259, 1262 (7th Cir.1987). A Privacy Act claim is not tolled by continuing violations. See Diliberti, 817 F.2d at 1261. Davis claims that HUD attorney Crowder filed a Charge of Discrimination against him on January 17, 1996 based upon records improperly obtained from Brooks-Pittman and a falsified Final Investigative Report prepared by Burks. He also alleges that Crowder failed to verify any exculpatory information he provided prior to filing the Charge and that she then improperly transferred records used in preparing the Charge to the DOJ. Based upon these allegations, the district court found that Davis had reason to know that HUD was violating the Privacy Act at least as early as January 17, 1996, when Crowder filed the allegedly inaccurate Charge of Discrimination. Davis, however, waited more than two years before filing his complaint on February 27, 1998. Davis therefore failed to bring his claim within the time allowed by the statute of limitations. “Where the government’s consent as sovereign to be sued is conditioned upon the filing of suit within a specified period of time, strict compliance with that condition is a jurisdictional prerequisite.” Id. It was Davis’s burden to establish that the statute of limitations had been met in order to invoke the district court’s jurisdiction, see Bowyer, 875 F.2d at 635, and he has failed to do so. Because the district court properly dismissed this claim for lack" }, { "docid": "23098264", "title": "", "text": "of two years after he first has reason to believe that the government is maintaining such a record to investigate whether there are reasonable factual and legal bases for bringing an action under the Privacy Act and then ultimately to file the suit. The plaintiff had the full two years to determine whether the rumors and hearsay could be substantiated. Section 552a(g)(5) does not afford him any further time. Finally, the plaintiff argues that the continuing violation doctrine should toll the statute of limitations. According to the plaintiff, the government’s use of the private records to force the plaintiff into early retirement from the civil service on December 81, 1983, was a new and continuing unlawful act, occurring well within two years of the filing of this suit on February 1, 1984. The Tenth Circuit in Bergman rejected the argument that a new cause of action arises upon “each and every subsequent adverse determination based on erroneous records.” 751 F.2d at 317. The plaintiff has not alleged any new unlawful conduct by the government; he has merely alleged a continuing adverse consequence of prior unlawful conduct. See, e.g., Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir.1981) (“A continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation.”); Oppenheim v. Campbell, 571 F.2d 660, 662 (D.C.Cir.1978) (plaintiff’s claim accrues when he is “first harmed”). We fully agree with the Tenth Circuit that to subscribe to an argument such as the plaintiff advances “would, in practical effect, mean that the two-year statute would never run.” Bergman, 751 F.2d at 317. The plaintiff's Privacy Act suit is barred by § 552a(g)(5) and we therefore affirm the district court’s dismissal for lack of subject matter jurisdiction, although on another ground. . Section 552a(g)(5) also provides that where an agency has materially and willfully misrepresented material information required to be disclosed to an individual under the Privacy Act, an action may be brought “at any time within two years after discovery by the individual of the misrepresentation.\" By focusing on when the plaintiff first knew or had" }, { "docid": "17292978", "title": "", "text": "1994. Plaintiff claims monetary damages of $250,000 under the Privacy Act, 5 U.S.C. § 552a(g)(l)(C) and § 552a(g)(4). The complaint asserts that defendant failed to maintain accurate records and made a determination adverse to plaintiff on the basis of those records, which caused him emotional harm. Although the complaint does not specify the adverse determination that gives rise to this cause of action, it appears that it is the August 9, 1991 denial of parole. Based on the information plaintiff cites in his complaint, the records at issue appear to be the presentence report, the June 3, 1991 institutional progress report, and the June 12, 1991 prehearing assessment. ANALYSIS Defendant moved to dismiss the complaint on the grounds that plaintiffs claim is barred by the two year statute of limitations for Privacy Act claims. 5 U.S.C. § 552a(g)(5). Because the statute of limitations is a condition of the sovereign’s consent to be sued, failure to file suit within two years of the time that plaintiff learns of the violation of the statute “deprives the federal courts of subject matter jurisdiction over the action.” Diliberti v. United States, 817 F.2d 1259, 1262 (7th Cir.1987). A cause of action arises under the Privacy Act at the time that, (1) an error was made in maintaining plaintiffs records; (2) plaintiff was harmed by the error; and (3) the plaintiff either knew or had reason to know of the error. See Bergman v. United States, 751 F.2d 314, 317 (10th Cir.1984); see also Tijerina v. Walters, 821 F.2d 789, 798 (D.C.Cir.1987) (holding that the statute of limitations begins to run when plaintiff knew, or should have known of the alleged violation). Under this standard it is clear that plaintiffs claim is time barred. The prehearing assessment report is dated June 12, 1991, which is the latest date that an error could have been made in the documents that plaintiff challenges. If plaintiff was harmed by any errors in the documents, the harm occurred as a result of the August 9,1991 parole decision. Plaintiff claims that he knew or had reason to know of the" }, { "docid": "18042697", "title": "", "text": "The Privacy Act i. Statute of Limitation Plaintiff’s complaint is barred by the two year statute of limitation under the Privacy Act. Plaintiff filed this action on August 4, 1995, seeking damages for alleged injuries which occurred from September 5, 1993 to October 20, 1994. However, the record indicates that the alleged violation, which gave rise to this Privacy Act cause of action, arose as early as February 5, 1993. Section 552a(g)(5) provides that a cause of action under the Privacy Act must be filed within two years of the alleged violation, or within two years after plaintiffs discovery of the alleged violation. The United States Court of Appeals for the District of Columbia Circuit has interpreted this to mean that the statute of limitation runs when the plaintiff knows or should know of the alleged violation. Tijerina v. Walters, 821 F.2d 789 (D.C.Cir.1987) (holding that in a normal Privacy Act claim, the cause of action does not arise and the statute of limitation does not begin to run until the plaintiff knows or should know of the alleged violation). Furthermore, this court has found that “new causes of action do not arise each and every time there is subsequent adverse determination based on the alleged incorrect records.” Szymanski v. U.S. Parole Comm., 870 F.Supp. 377, 378 n. 4 (D.D.C.1994), (citing Diliberti v. U.S., 817 F.2d 1259, 1264 (7th Cir.1987)). If the suit is not filed within two years, the court simply no longer has subject matter jurisdiction. Id. at 378. In the present case, plaintiff knew of defendant’s alleged violation of her rights under the Privacy Act for more than two years. The evidence in the record demonstrates that plaintiff was aware of the alleged omission in her Second File as early as February 5,1993. In a letter to Mr. Kelly, dated February 5, 1993, plaintiff wrote that “the fact that I am precluded from [camp placement] due to my escape history, I am requesting your assistance with locating my [First File] which would document a more recent furlough history and be more favorable to me.” This letter demonstrates" }, { "docid": "10801828", "title": "", "text": "a foreign country. We address each question in turn, reviewing de novo “the question of when a cause of action accrues[under the Privacy Act] and whether [such] a claim is barred by the statute of limitations.” See Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1127 (9th Cir.2006). A Initially, we must determine whether Rouse’s complaint was filed within two years of the date his cause of action allegedly arose. We have held that a cause of action arises under the Privacy Act when the plaintiff “knows or has reason to know of the alleged violation.” Rose v. United States, 905 F.2d 1257, 1259 (9th Cir.1990). Rouse “concedes that he was aware of many of the acts and omissions underlying the violations of the Privacy Act during the course of his imprisonment.” The record bears this out. By 1998, Rouse allegedly “began to realize that the Embassy personnel were deliberately manipulating the existence and content of his [Privacy Act waivers].” At the very latest, Rouse would have been aware of the basis for his most recent allegation against the Department when he received his “complete” file pursuant to a FOIA request in early 2002. Accordingly, when Rouse’s complaint was filed on September 27, 2005, it was filed more than two years after he knew or had reason to know of the alleged violations. B Before proceeding further, we must decide whether § 552a(g)(5) operates as'a statute of limitations or as a jurisdictional bar. If it is the former, the traditional defenses of “waiver, estoppel, and equitable tolling” apply. United States v. Locke, 471 U.S. 84, 94 n. 10, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985). If it is the latter, such defenses are inapplicable, and we lack subject matter jurisdiction over the case entirely. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). For many years, it was commonplace for courts to determine that time limits in statutes permitting suits against the government were jurisdictional in nature. See, e.g., Action on Smoking & Health v. C.A.B., 724 F.2d 211," }, { "docid": "1771009", "title": "", "text": "F.Supp. 942, 945 (N.D.Ill.1985), aff'd, 792 F.2d 142 (7th Cir.), cert. denied, 479 U.S. 1009, 107 S.Ct. 651, 93 L.Ed.2d 706 (1986); Windsor v. Federal Executive Agency, 614 F.Supp. 1255, 1259 n. 6 (M.D.Tenn.1983), aff'd without op., 767 F.2d 923 (6th Cir.1985). Accordingly, all Privacy Act claims plaintiff asserts against defendants other than the agencies must be dismissed. Under 5 U.S.C. § 552a(g)(5): An action to enforce any liability created under this section may be brought in the district court ... within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual under this section, the action may be brought at any time within two years after discovery by the individual of the misrepresentation. Thus, in a “normal” Privacy Act claim, the statute of limitations begins to run when the plaintiff knows or should know of the alleged violation. Tijerina v. Walters, 821 F.2d 789, 798 (D.C.Cir.1987). However, in cases in which the Government has “purposefully misrepresented] information that could establish it already has violated the Act,” the period begins to run upon actual discovery of the misrepresentation. Id. Plaintiff received her first redacted copy of the IG report, along with a letter indicating that the report was exempt from the access and amendment provisions of the Privacy Act, in February 1981, more than five years before she filed this lawsuit. Two years later, in February 1983, she told an OPM investigator that the information in the IG report was “confusing and incorrect.” Thus, even applying the more liberal limitations period due to the Government’s alleged willfull misrepresentations to plaintiff, her claims as to the IG report are barred. She admits in her amended complaint that by 1983, she had discovered the alleged incorrect statements in the report. Additionally, she knew in 1981 that she was denied access to the entire IG report, and that Treasury was claiming" }, { "docid": "9960836", "title": "", "text": "The question of when a petitioner should know from the VA’s continued silence that it has failed or refused to act upon his request is a factual one to be determined on the basis of the record in the particular case. The thirty-day period mentioned in the dissent apparently refers to an argument that En-glerius should have known from the level of his monthly benefit checks that his request to amend had been denied. The government did not make any such contention on appeal. If the argument has any merit whatsoever, and it is far from clear that it does, the government can present it to the district court at the appropriate time. BEEZER, Circuit Judge, dissenting: In January 1981, appellant Maximus En-glerius was examined at the Seattle Veterans Administration Hospital for the purpose of evaluating his disability status. Englerius sought increased disability benefits and physical rehabilitation treatment. After learning that benefit payments would be denied on the basis of physical disability, Englerius voluntarily submitted to a psychiatric examination. Thereafter, benefits, based on the psychiatric report, were awarded for psychiatric disability. On April 18, 1981, Englerius requested that the psychiatric report be removed from his file despite the fact that his benefits were dependent on the report. The Veterans Administration Hospital never acknowledged receipt of the request. Two years and eight months later, En-glerius filed suit against the Veterans Administration. In addition to a damage claim, he sought to have the psychiatric report deleted from his file or amended “to show that he is normal and well.” The district court construed the latter claim as a request under the Privacy Act of 1974, 5 U.S.C. § 552a (1982). The government’s motion to dismiss was granted on the grounds that a Privacy Act suit must be filed “within two years of the date on which the cause of action arises.” 5 U.S.C. § 552a(g)(5). On these facts, we need only determine when Englerius’ “cause of action arises” under the Privacy Act. I agree with the majority that a “cause of action arises” under the Privacy Act when the plaintiff “knows or" }, { "docid": "3395596", "title": "", "text": "the same allegedly erroneous documents which prevented him from being rehired in 1982 also gave rise to a new violation when they were used by the Merit Board in September 1983 in investigating his claim. As Diliberti makes clear, this was not a separate wrong. The underlying documents were the same in both cases. Bowyer “has merely alleged a continuing adverse consequence of [allegedly] prior unlawful conduct.” Diliberti, at 1264. To accept such “an argument ... ‘would, in practical effect, mean that the two-year statute [of limitations] would nev er run.’ ” Id. (quoting Bergman, 751 F.2d at 317). Because Bowyer’s Privacy Act suit is barred by § 552a(g)(5), we affirm the district court’s dismissal for lack of subject matter jurisdiction. Affirmed. . The district court thus made no finding as to whether there was such a misrepresentation. And it is far from clear whether there was any misrepresentation at all. While we will refrain from making factual determinations, we note that in McClanahan’s second declaration, he explained that the reason he told Bowyer he did not keep records on temporary employees was because he considered his records pertaining to temporary employees to be unofficial, and that, as a result, he was not obligated to disclose their existence. . We must point out that whether the records in question are in fact erroneous has never been determined. For our purposes, though, that is not important and we assume that they were. . The Bergman test which we followed in Dili-berti holds that a cause of action arises under the Privacy Act when (1) an error was made in maintaining the plaintiffs records; (2) the plaintiff was wronged by such error; and (3) the plaintiff either knew or had reason to know of such error. Id. at 1262. . In Tijerina, the government contended § 552a(g)(5) contained two different limitations periods. The first period (the \"normal statutory period”), it argued, commenced at the time of the alleged violation, regardless of whether the potential plaintiff was or should have been aware of the agency’s action. According to the government, this was the" }, { "docid": "9960837", "title": "", "text": "report, were awarded for psychiatric disability. On April 18, 1981, Englerius requested that the psychiatric report be removed from his file despite the fact that his benefits were dependent on the report. The Veterans Administration Hospital never acknowledged receipt of the request. Two years and eight months later, En-glerius filed suit against the Veterans Administration. In addition to a damage claim, he sought to have the psychiatric report deleted from his file or amended “to show that he is normal and well.” The district court construed the latter claim as a request under the Privacy Act of 1974, 5 U.S.C. § 552a (1982). The government’s motion to dismiss was granted on the grounds that a Privacy Act suit must be filed “within two years of the date on which the cause of action arises.” 5 U.S.C. § 552a(g)(5). On these facts, we need only determine when Englerius’ “cause of action arises” under the Privacy Act. I agree with the majority that a “cause of action arises” under the Privacy Act when the plaintiff “knows or has reason to know” that (1) an error has been made by the agency, and (2) he has been wronged by such error. This is the appropriate standard because the Privacy Act, 5 U.S.C. § 552a(g)(5), states that if an agency “materially and willfully misrepresents any information ... the action may be brought at any time within two years after discovery by the individual of the misrepresentation.” On the other hand, if willful misrepresentation is not apparent or alleged, “[a]n action to enforce a liability ...” may only be brought “within two years from the date on which the cause of action arises.” 5 U.S.C. § 552a(g)(5). While the statutory language does not clearly state when a cause of action “arises” in a non-willful case, such as this one, it does indicate that Congress intended to distinguish the statute of limitations which governs a willful act from that which governs a non-willful act. Congress intended the courts to apply different standards. The statute establishes one limitation period for non-willful acts and another for willful acts." }, { "docid": "18042698", "title": "", "text": "know of the alleged violation). Furthermore, this court has found that “new causes of action do not arise each and every time there is subsequent adverse determination based on the alleged incorrect records.” Szymanski v. U.S. Parole Comm., 870 F.Supp. 377, 378 n. 4 (D.D.C.1994), (citing Diliberti v. U.S., 817 F.2d 1259, 1264 (7th Cir.1987)). If the suit is not filed within two years, the court simply no longer has subject matter jurisdiction. Id. at 378. In the present case, plaintiff knew of defendant’s alleged violation of her rights under the Privacy Act for more than two years. The evidence in the record demonstrates that plaintiff was aware of the alleged omission in her Second File as early as February 5,1993. In a letter to Mr. Kelly, dated February 5, 1993, plaintiff wrote that “the fact that I am precluded from [camp placement] due to my escape history, I am requesting your assistance with locating my [First File] which would document a more recent furlough history and be more favorable to me.” This letter demonstrates that plaintiff believed that her Second File was not complete and that she was actively seeking to amend it. Furthermore, plaintiffs complaint states that she continuously sought to access and amend her Second File from February 5, 1993 to October 20,1994, without success. Based on this evidence, the court concludes that plaintiff knew or should have known of the BOP’s alleged violation of plaintiffs rights under the Privacy Act as early as February 5,1993. Plaintiff, however, did not file the current action until August 4, 1995, two years and six months after she knew or should have known of the alleged violation. Thus, plaintiffs suit falls outside the statute of limitation of the Privacy Act. Accordingly, the court concludes that plaintiffs Privacy Act claims are barred by the two year statute of limitation. ii. Failure to State a Claim Even if plaintiffs complaint was timely filed, plaintiffs complaint fails to satisfy the four-prong test in an action for damages under the Privacy Act. To prevail in a Privacy Act cause of action, plaintiff must establish" }, { "docid": "13203931", "title": "", "text": "claims should be dismissed because they are (1) time barred by the statute of limitations, (2) the plaintiff failed to exhaust his administrative remedies, and (3) the plaintiff inappropriately used the Privacy Act to challenge the substantive decisions of the Army. a. Statute of Limitations Actions to enforce rights under the Privacy Act must be brought “within two years from the date on which the cause of action arises .... ” 5 U.S.C. § 552a(g)(5); see also Blazy v. Tenet, 979 F.Supp. 10, 22 n. 6 (D.D.C.1997) (citing Tijerina v. Walters, 821 F.2d 789, 798 (D.C.Cir.1987); Diliberti v. United States, 817 F.2d 1259, 1263-64 (7th Cir.1987) (concluding the two-year statute of limitations runs from the date the plaintiff knew or should have known of the maintenance of inaccurate records)). Failure to meet the two-year period may deprive a court of subject matter jurisdiction and thus bar the action. See generally Blazy, 979 F.Supp. at 22 n. 6. The defendant relies on Griffin v. United States Parole Comm’n, 192 F.3d 1081, 1082 (D.C.Cir.1999) to apparently argue that any claim filed after the two-year period is time barred. Griffin, however, was overruled by Chung v. United States Dep’t of Justice, 333 F.3d 273, 278 n. * (D.C.Cir.2003). Chung determined that a rebuttable presumption in favor of equitable tolling of the statute of limitations applies to a Privacy Act claim. Id. at 277-78. Equitable tolling applies most commonly when a plaintiff, despite all due diligence, cannot obtain vital information bearing on the existence of his claim. Id. at 278 (citing Currier v. Radio Free Europe, 159 F.3d 1363, 1367 (D.C.Cir.1998)). Consequently, a Privacy Act claim filed after the two-year period is not automatically time barred; equitable tolling of the statute of limitations may occur. The defendant argues that the plaintiffs Privacy Act claims are time barred. The plaintiff first claims that he was denied access to his medical records “while in the hospital-” (Pl.’s Compl. at pp. 2-3, ¶ 1). The defendant argues that any claim of the plaintiff under the' Privacy Act would have expired in October 2002 because he knew or" }, { "docid": "13203930", "title": "", "text": "relief.” Conley, 355 U.S. at 45-46, 78 S.Ct. 99. III. ANALYSIS The defendant’s motion to dismiss is analyzed first. Since the Court determines the defendant’s motion to dismiss will be granted, the Court does not analyze the defendant’s motion for summary judgment. A. Motion to Dismiss The defendant makes many arguments for dismissing the plaintiffs complaint. First, the defendant argues the plaintiffs Privacy Act claims should be dismissed. Second, the plaintiff argues that the plaintiffs Freedom of Information Act (FOIA) claims should be dismissed because he failed to exhaust his administrative remedies. Third, the defendant argues that the plaintiffs tort claims should be dismissed because he failed to exhaust his administrative remedies. Fourth, the defendant argues that the Court of Federal Claims, not this Court, has jurisdiction over his complaint. While some of these arguments alone or in conjunction with another argument would lead to the dismissal of the plaintiffs complaint, the Court analyzes each of these arguments and the plaintiffs response thereto. 1. Privacy Act Claims The defendant argues that the plaintiffs Privacy Act claims should be dismissed because they are (1) time barred by the statute of limitations, (2) the plaintiff failed to exhaust his administrative remedies, and (3) the plaintiff inappropriately used the Privacy Act to challenge the substantive decisions of the Army. a. Statute of Limitations Actions to enforce rights under the Privacy Act must be brought “within two years from the date on which the cause of action arises .... ” 5 U.S.C. § 552a(g)(5); see also Blazy v. Tenet, 979 F.Supp. 10, 22 n. 6 (D.D.C.1997) (citing Tijerina v. Walters, 821 F.2d 789, 798 (D.C.Cir.1987); Diliberti v. United States, 817 F.2d 1259, 1263-64 (7th Cir.1987) (concluding the two-year statute of limitations runs from the date the plaintiff knew or should have known of the maintenance of inaccurate records)). Failure to meet the two-year period may deprive a court of subject matter jurisdiction and thus bar the action. See generally Blazy, 979 F.Supp. at 22 n. 6. The defendant relies on Griffin v. United States Parole Comm’n, 192 F.3d 1081, 1082 (D.C.Cir.1999) to apparently argue" }, { "docid": "10801827", "title": "", "text": "and can likewise be enforced via civil action, id. § 552a(g)(l)(B) (creating a cause of action when an agency “refuses to comply with an individual request under subsection (d)(1)”). Rouse brings both accuracy and access claims. Our discussion, however, is limited to his accuracy claims. Because Rouse concedes that he received a copy of his full embassy file, his access claims are moot. We review the district court’s dismissal of Rouse’s claims de novo, see Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir.2008), accepting “all material allegations of the complaint” as true and construing “all reasonable inferences” in favor of the nonmoving party, Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). Ill We first consider whether Rouse’s complaint was timebarred. The Privacy Act requires plaintiffs to bring suit within “two years from the date on which the cause of action arises.” 5 U.S.C. § 552a(g)(5). Even if his complaint was filed outside the two-year period, Rouse asserts that the statute should be equitably tolled to account for his imprisonment in a foreign country. We address each question in turn, reviewing de novo “the question of when a cause of action accrues[under the Privacy Act] and whether [such] a claim is barred by the statute of limitations.” See Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1127 (9th Cir.2006). A Initially, we must determine whether Rouse’s complaint was filed within two years of the date his cause of action allegedly arose. We have held that a cause of action arises under the Privacy Act when the plaintiff “knows or has reason to know of the alleged violation.” Rose v. United States, 905 F.2d 1257, 1259 (9th Cir.1990). Rouse “concedes that he was aware of many of the acts and omissions underlying the violations of the Privacy Act during the course of his imprisonment.” The record bears this out. By 1998, Rouse allegedly “began to realize that the Embassy personnel were deliberately manipulating the existence and content of his [Privacy Act waivers].” At the very latest, Rouse would have been aware of the basis for" }, { "docid": "1771008", "title": "", "text": "Privacy Act, 5 U.S.C. § 552a, in several ways: (1) by failing to maintain accurate records, (2) by preventing plaintiff from learning all that is contained in those records, (3) by making improper disclosures, (4) by maintaining documents in purposes and manners for which they were not intended, (5) by refusing amendment or expungement of records, (6) by failing to collect information from plaintiff, (7) by maintaining a record regarding plaintiff’s exercise of her First Amendment rights, and (8) by exempting the IG report from the Privacy Act. Defendants submit that these claims must be dismissed because they are barred by the two-year statute of limitations of the Privacy Act, and because, to the extent that she is alleging failure to amend, she has failed to exhaust administrative remedies. As a preliminary matter, the Privacy Act provides for civil remedies only against an agency, not against individuals. Brown-Bey v. United States, 720 F.2d 467, 469 (7th Cir.1983); Bruce v. United States, 621 F.2d 914, 916 n. 2 (8th Cir.1980); Ely v. Department of Justice, 610 F.Supp. 942, 945 (N.D.Ill.1985), aff'd, 792 F.2d 142 (7th Cir.), cert. denied, 479 U.S. 1009, 107 S.Ct. 651, 93 L.Ed.2d 706 (1986); Windsor v. Federal Executive Agency, 614 F.Supp. 1255, 1259 n. 6 (M.D.Tenn.1983), aff'd without op., 767 F.2d 923 (6th Cir.1985). Accordingly, all Privacy Act claims plaintiff asserts against defendants other than the agencies must be dismissed. Under 5 U.S.C. § 552a(g)(5): An action to enforce any liability created under this section may be brought in the district court ... within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual under this section, the action may be brought at any time within two years after discovery by the individual of the misrepresentation. Thus, in a “normal” Privacy Act claim, the statute of limitations begins to run when the plaintiff knows or" }, { "docid": "2441518", "title": "", "text": "Plaintiff’s Privacy Act Claim Is Untimely A civil action under the Privacy Act must be filed within two years from the date a claim accrues, see id. § 552a(g)(5), unless equitable tolling of the limitations period is 'warranted. See Chung v. U.S. Dep’t of Justice, 333 F.3d 273, 278 n. 1 (D.C.Cir.2003). “The only exception to the rule arises if an agency ‘materially and willfully misrepresented any information,’ ” and in such circumstances, “the action may be brought at any time within two years after discovery by the individual of the misrepresentation.” Samtmann v. U.S. Dep’t of Justice, 35 F.Supp.3d 82, 88 (D.D.C.2014) (quoting 5 U.S.C. § 552a(g)(5)), aff'd, No. 14-5115, 2015 WL 236560 (D.C.Cir. Jan. 16, 2015) (per curiam). The FBI moves to dismiss Plaintiffs Privacy Act claim on the ground that it is barred by the two-year statute of limitations. See Def.’s Mem. at 7-8. FBI records reflect that the relevant Electronic Communication from file number 305D-ME-57442 was released to Plaintiff on May 24, 2010 in response to his Freedom of Information Act request, such that the two-year limitations period expired long before Plaintiff filed this action nearly four years later in 2015. Further, the FBI argues, tolling is not warranted because Plaintiff fails to allege facts to show that the agency willfully or intentionally misrepresented information pertaining to him or its criminal investigation of his‘activities: See id. at 8. ^ Plaintiffs cause of action arose when he knew or had reason to know of the alleged Privacy Act violation, See Ramirez v. Dep’t of Justice, 594 F.Supp.2d 58, 62 (D.D.C.2009). Presumably Plaintiff knew or had reason to know that the Electronic Communication contained false or inaccurate information upon receipt of records from the FBI-in response to his FOIA request. Plaintiff’s response to the FBI’s motion to dismiss does not mention the statute of limitations, set forth any. basis for equitable tolling, or proffer alleged facts .to support his wholly conclusory assertions of the FBI’s supposed willful and intentional misrepresentations. The court concludes that Plaintiffs Privacy Act claim is barred by the statute of limitation's and, therefore must" } ]

[ { "docid": "23163938", "title": "", "text": "For this reason, although we find encouragement in cases relied upon by Smith, as well as the recent decision in Lincoln Pulp & Paper Co. v. Dravo Corp., 436 F.Supp. 262 (D.Me.1977) (Pennsylvania law), we decline to treat any of them as precisely in point. Supportive California authority consists of Delta Air Lines, Inc. v. Douglas Aircraft Co., 238 Cal. App.2d 95, 104-05, 47 Cal.Rptr. 518, 524 (1965) (between parties of equal bargaining strength, risk of loss for defective product should be borne by buyer who, as a matter of business judgment, accepted risk associated with bargained-for price; rather than on seller, who neither agreed to bear loss nor was compensated for it). IV. Recovery Under Negligence Counts. Where the suit is between a nonperforming seller and an aggrieved buyer and the injury consists of damage to the goods themselves and the costs of repair of such damage or a loss of profits that the deal had been expected to yield to the buyer, it would be sensible to limit the buyer’s rights to those provided by the Uniform Commercial Code. See Keeton, Torts, Annual Survey of Texas Law, 25 Sw.L.J. 1, 5 (1971); Franklin, When Worlds Collide: Liability Theories and Disclaimers in Defective-Product Cases, 18 Stan.L.Rev. 974, 996-97, 1012-14 (1966). To treat such a breach as an accident is to confuse disappointment with disaster. Whether the complaint is cast in terms of strict liability in tort or negligence should make no difference. There exists some authority supporting this view. See Mid Continent Aircraft Corp. v. Curry County Spraying Service, Inc., 572 S.W.2d 308 (Tex.1978); Kaiser Steel Corp. v. Westinghouse Electric Corp., 55 Cal. App.3d 737, 127 Cal.Rptr. 838 (1976). In a somewhat curious way California law achieves this result by limiting the type of losses recoverable under an action in negligence. Economic losses are not recoverable under negligence. Seely v. White Motor Co., 63 Cal.2d 9, 18, 45 Cal.Rptr. 17, 23, 403 P.2d 145, 151 (1965) fixed the rule and it frequently has been followed. See Anthony v. Kelsey-Hayes Co., 25 Cal.App.3d 442, 446-A7, 102 Cal.Rptr. 113, 115-16 (1972);" } ]

[ { "docid": "2290255", "title": "", "text": "as to any material fact and that the moving party is entitled to a judgment as a matter of law.” If there is a factual dispute, the appropriate judicial inquiry under Rule 56 is 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., — U.S. -, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986); see also Bushman v. Halm, 798 F.2d 651, 657 (3d Cir.1986). If no facts are in dispute, the court should, of course, grant summary judgment to the party entitled to judgment as a matter of law. I. Products-Liability Claim This case is before us under the court’s admiralty jurisdiction pursuant to 28 U.S.C. § 1333 (1966). Defendants assert that the recent Supreme Court decision, East River Steamship Corp. v. Transamerica Delaval Inc., — U.S.-, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986), mandates that plaintiffs’ products-liability claims in admiralty be dismissed. In East River, a group of ship charterers sued defendant, who had designed, manufactured, and supervised the installation of turbines in the chartered ships, alleging that defendant was strictly liable for design defects in the turbines and was negligent in the installation of a valve. The only damage was to the turbines themselves, and the charterers sought recovery for the cost of repairing or replacing the allegedly defective parts, and for income lost while the ships were out of service. The Court first held that it joined the Courts of Appeals in recognizing products-liability as part of the general maritime law. Id. at 2299. The Court then confronted the conflict among the Courts of Appeals sitting in admiralty on the proper approach to products-liability claims when the defective product causes injury only to itself, and the resultant loss is purely economic. The Court noted that the majority of Courts of Appeals that had considered the issue had held that a manufacturer is liable for economic losses when a defective product injures only itself, whether or not the defect created an unreasonable" }, { "docid": "22699960", "title": "", "text": "resumed its travels. II The charterers’ second amended complaint, filed in the United States District Court for the District of New Jersey, invokes admiralty jurisdiction. It contains five counts alleging tortious conduct on the part of respondent Delaval and seeks an aggregate of more than $8 million in damages for the cost of repairing the ships and for income lost while the ships were out of service. The first four counts, read liberally, allege that Delaval is strictly liable for the design defects in the high-pressure turbines of the Stuyvesant, the Williams-burgh, the Brooklyn, and the Bay Ridge, respectively. The fifth count alleges that Delaval, as part of the manufacturing process, negligently supervised the installation of the astern guardian valve on the Bay Ridge. The initial complaint also had listed Seatrain and Shipbuilding as plaintiffs and had alleged breach of contract and warranty as well as tort claims. But after Delaval interposed a statute of limitations defense, the complaint was amended and the charterers alone brought the suit in tort. The nonrenewed claims were dismissed with prejudice by the District Court. Delaval then moved for summary judgment, contending that the charterers’ actions were not cognizable in tort. The District Court granted summary judgment for De~ laval, and the Court of Appeals for the Third Circuit, sitting en banc, affirmed. East River S.S. Corp. v. Delaval Turbine, Inc., 752 F. 2d 903 (1985). The Court of Appeals held that damage solely to a defective product is actionable in tort if the defect creates an unreasonable risk of harm to persons or property other than the product itself, and harm materializes. Disappointments over the product’s quality, on the other hand, are protected by warranty law. Id., at 908, 909-910. The charterers were dissatisfied with product quality: the defects involved gradual and unnoticed deterioration of the turbines’ component parts, and the only risk created was that the turbines would operate at a lower capacity. Id., at 909. See Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F. 2d 1165, 1169-1170 (CA3 1981). Therefore, neither the negligence claim nor the strict-liability claim was" }, { "docid": "2290257", "title": "", "text": "risk of harm. 106 S.Ct. at 2301 (citing Emerson G.M. Diesel, Inc. v. Alaskan Enterprise, 732 F.2d 1468 (9th Cir.1984)). The Court continued that a second view imposed liability on the manufacturer only when the users of the product were “endangered,” the determination turning on “the nature of the defect, the type of risk, and the manner in which the injury arose.” 106 S.Ct. at 2301. The Court rejected both of these approaches, and adopted a third view, holding that when a product injures only itself and losses are purely economic, a manufacturer is not liable under a negligence or strict products-liability theory, regardless of the circumstances under which the injury occurred. Id. at 2302. The Court noted that products-liability developed as a result of a policy judgment that “people need more protection from dangerous products than is afforded by the law of warranty,” but cautioned that “if this development were allowed to progress too far, contract law would drown in a sea of tort.” Id. at 2299-300. The Court said that in cases in which a product injures only itself, causing purely economic losses, the appropriate avenue of relief is a breach of warranty action. It explained that “the resulting loss due to repair costs, decreased value, and lost profits is essentially the failure of the purchaser to receive the benefit of the bargain — traditionally the core concept of contract law.” Id. at 2302. At issue in the case before us is whether the East River holding is applicable to fishermen. In footnote five of the opinion, the Court, after acknowledging the split in the Courts of Appeals on the issue at bar, noted: Most of the admiralty cases concerned fishing vessels. See Emerson G.M. Diesel, Inc. v. Alaskan Enterprise, 732 F.2d 1468, 1472 (CA9 1984) (relying on solicitude for fishermen as a reason for a more protective approach). Delaval [the defendant in East River ] concedes that the courts, see Carbone v. Ursich, 209 F.2d 178, 182 (CA9 1953), and Congress, see 46 U.S.C. § 533, at times have provided special protection for fisherman. This case involves" }, { "docid": "22699982", "title": "", "text": "Tr. of Oral Arg. 36. Even so, the charterers should be left to the terms of their bargains, which explicitly allocated the cost of repairs. In the charterers’ agreements with the owners, the charterers took the ships in “as is” condition, after inspection, and assumed full responsibility for them, including responsibility for maintenance and repairs and for obtaining certain forms of insurance. Id., at 11, 16-17, 35; App. 86, 88, 99, 101, 112, 114, 125-126, 127. In a separate agreement between each charterer and Seatrain, Seatrain agreed to guarantee certain payments and covenants by each charterer to the owner. Id., at 142-156. The contractual responsibilities thus were clearly laid out. There is no reason to extricate the parties from their bargain. Similarly, in the fifth count, alleging the reverse installation of the astern guardian valve, the only harm was to the propulsion system itself rather than to. persons or other property. Even assuming that Delaval’s supervision was negligent, as we must on this summary judgment motion, Delaval owed no duty under a products-liability theory based on negligence to avoid causing purely economic loss. Cf. Flintkote Co. v. Dravo Corp., 678 F. 2d 942 (CA11 1982); S. M. Wilson & Co. v. Smith International, Inc., 587 F. 2d 1363 (CA9 1978). Thus, whether stated in negligence or strict liability, no products-liability claim lies in admiralty when the only injury claimed is economic loss. While we hold that the fourth count should have been dismissed, we affirm the entry of judgment for Delaval. It is so ordered. Compare East River S.S. Corp. v. Delaval Turbine, Inc., 752 F. 2d 903 (CA3 1985) (en bane) (this case), with Ingram River Equipment, Inc. v. Pott Industries, Inc., 756 F. 2d 649 (CA8 1985), cert. pending, No. 85-12; Miller Industries v. Caterpillar Tractor Co., 733 F. 2d 813 (CA11 1984); Emerson G. M. Diesel, Inc. v. Alaskan Enterprise, 732 F. 2d 1468 (CA9 1984). See also Pan-Alaska Fisheries, Inc. v. Marine Constr. & Design Co., 565 F. 2d 1129 (CA9 1977); and Jig The Third Corp. v. Puritan Marine Ins. Underwriters Corp., 519 F. 2d" }, { "docid": "22699956", "title": "", "text": "Justice Blackmun delivered the opinion of the Court. In this admiralty case, we must decide whether a cause of action in tort is stated when a defective product purchased in a commercial transaction malfunctions, injuring only the product itself and causing purely economic loss. The case requires us to consider preliminarily whether admiralty law, which already recognizes a general theory of liability for negligence, also incorporates principles of products liability, including strict liability. Then, charting a course between products liability and contract law, we must determine whether injury to a product itself is the kind of harm that should be protected by products liability or left entirely to the law of contracts. I In 1969, Seatrain Shipbuilding Corp. (Shipbuilding), a wholly owned subsidiary of Seatrain Lines, Inc. (Seatrain), announced it would build the four oil-transporting supertankers in issue — the T. T. Stuyvesant, T. T. Williamsburgh, T. T. Brooklyn, and T. T. Bay Ridge. Each tanker was constructed pursuant to a contract in which a separate wholly owned subsidiary of Seatrain engaged Shipbuilding. Shipbuilding in turn contracted with respondent, now known as Transamerica Delaval Inc. (Delaval), to design, manufacture, and supervise the installation of turbines (costing $1.4 million each, see App. 163) that would be the main propulsion units for the 225,000-ton, $125 million, ibid., supertankers. When each ship was completed, its title was transferred from the contracting subsidiary to a trust company (as trustee for an owner), which in turn chartered the ship to one of the petitioners, also subsidiaries of Seatrain. Queensway Tankers, Inc., chartered the Stuyvesant; Kingsway Tankers, Inc., chartered the Williamsburgh; East River Steamship Corp. chartered the Brooklyn; and Richmond Tankers, Inc., chartered the Bay Ridge. Each petitioner operated under a bareboat charter, by which it took full control of the ship for 20 or 22 years as though it owned it, with the obligation after-wards to return the ship to the real owner. See G. Gilmore & C. Black, Admiralty §§4-1, 4-22 (2d ed. 1975). Each charterer assumed responsibility for the cost of any repairs to the ships. Tr. of Oral Arg. 11, 16-17, 35." }, { "docid": "22699961", "title": "", "text": "with prejudice by the District Court. Delaval then moved for summary judgment, contending that the charterers’ actions were not cognizable in tort. The District Court granted summary judgment for De~ laval, and the Court of Appeals for the Third Circuit, sitting en banc, affirmed. East River S.S. Corp. v. Delaval Turbine, Inc., 752 F. 2d 903 (1985). The Court of Appeals held that damage solely to a defective product is actionable in tort if the defect creates an unreasonable risk of harm to persons or property other than the product itself, and harm materializes. Disappointments over the product’s quality, on the other hand, are protected by warranty law. Id., at 908, 909-910. The charterers were dissatisfied with product quality: the defects involved gradual and unnoticed deterioration of the turbines’ component parts, and the only risk created was that the turbines would operate at a lower capacity. Id., at 909. See Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F. 2d 1165, 1169-1170 (CA3 1981). Therefore, neither the negligence claim nor the strict-liability claim was cognizable. Judge Garth concurred on “grounds somewhat different,” 752 F. 2d, at 910, and Judge Becker, joined by Judge Higginbotham, concurred in part and dissented in part. Id., at 913. Although Judge Garth agreed with the majority’s analysis on the merits, he found no strict-liability claim presented because the charterers had failed to allege unreasonable danger or demonstrable injury. Judge Becker largely agreed with the majority’s approach, but would permit recovery for a “near miss,” where the risk existed but no calamity occurred. He felt that the first count, concerning the Stuyvesant, stated a cause of action in tort. The exposure of the ship to a severe storm when the ship was unable to operate at full power due to the defective part created an unreasonable risk of harm. We granted certiorari to resolve a conflict among the Courts of Appeals sitting in admiralty. 474 U. S. 814 (1985). Ill A Initially, we conclude that the fourth count should have been dismissed because Richmond Tankers, Inc., the charterer of the Bay Ridge, lacks standing to" }, { "docid": "22699981", "title": "", "text": "v. Flint, 275 U. S. 303, 309 (1927). And to the extent that courts try to limit purely economic damages in tort, they do so by relying on a far murkier line, one that negates the charterers’ contention that permitting such recovery under a prcducts-liability theory enables admiralty courts to avoid difficult line drawing. Cf. Ultramares Corp. v. Touche, 255 N. Y. 170, 174 N. E. 441 (1931); Louisiana ex rel. Guste v. M/V Testbank, 752 F. 2d 1019, 1046-1052 (CA5 1985) (en banc) (dissenting opinion), cert. pending sub nom. White v. M/V Testbank, No. 84-1808. D For the first three counts, the defective turbine components allegedly injured only the turbines themselves. Therefore, a strict products-liability theory of recovery is unavailable to the charterers. Any warranty claims would be subject to Delaval’s limitation, both in time and scope, of its warranty liability. App. 78-79. The record indicates that Seatrain and Delaval reached a settlement agreement. Deposition of Stephen Russell, p. 32. We were informed that these charterers could not have asserted the warranty claims. See Tr. of Oral Arg. 36. Even so, the charterers should be left to the terms of their bargains, which explicitly allocated the cost of repairs. In the charterers’ agreements with the owners, the charterers took the ships in “as is” condition, after inspection, and assumed full responsibility for them, including responsibility for maintenance and repairs and for obtaining certain forms of insurance. Id., at 11, 16-17, 35; App. 86, 88, 99, 101, 112, 114, 125-126, 127. In a separate agreement between each charterer and Seatrain, Seatrain agreed to guarantee certain payments and covenants by each charterer to the owner. Id., at 142-156. The contractual responsibilities thus were clearly laid out. There is no reason to extricate the parties from their bargain. Similarly, in the fifth count, alleging the reverse installation of the astern guardian valve, the only harm was to the propulsion system itself rather than to. persons or other property. Even assuming that Delaval’s supervision was negligent, as we must on this summary judgment motion, Delaval owed no duty under a products-liability theory based" }, { "docid": "2290263", "title": "", "text": "10. See also Miller, supra; Union Oil Co. v. Oppen, 501 F.2d 558 (9th Cir.1974). In short, most of the cases that have conferred special treatment on fishermen have done so in a context where there is no contractual relationship between the fishermen-plaintiffs and the defendant, and where plaintiffs’ claims would be dismissed as too remote absent the special exception. These cases clearly are distinguishable from the situation involved in East River and in the case before us, where plaintiffs did have a contractual relationship with defendants. We believe that in light of the analysis of the appropriate balance between tort and contract law in East River, it is appropriate to hold that a manufacturer in a commercial relationship has no duty under a negligence or strict products-liability theory to prevent a product from injuring itself — even if the plaintiffs are fishermen. Plaintiffs here have alleged only economic losses. We therefore grant defendants’ motion for summary judgment on plaintiffs’ strict liability claim, and deny plaintiffs’ summary judgment motion on that claim. II. Negligence Claim Plaintiffs allege that both Caterpillar and Giles & Ransome were negligent in failing to notify them of the defect in the crankshaft. We first note that the East River decision, as we read it, does not bar plaintiffs’ negligence claim. It is true that in East River, plaintiff-charterers, in the fifth count of their complaint, alleged that the defendant negligently supervised the installation of a valve, and that the Supreme Court disallowed recovery on this count as well as on the strict products-liability counts because the losses sustained were purely economic. However, in East River, plaintiffs alleged that the negligence occurred “as part of the manufacturing process.” 106 S.Ct. at 2297. The alleged negligence in the instant case is distinguishable; plaintiffs here assert, not that defendants negligently manufactured the crankshaft, but that they negligently failed to warn plaintiffs of a known defect in the crankshaft. In Miller Industries v. Caterpillar Tractor Co., 733 F.2d 813 (11th Cir.1984), the court addressed the distinction between the negligent manufacture of a product and the negligent failure to warn" }, { "docid": "23161052", "title": "", "text": "sudden fire to recover damages from the manufacturer in an action founded solely on products liability and negligence theories. At the time of our decision, then, as now, the Pennsylvania Supreme Court had not specifically addressed this issue. This court, speaking through Judge Adams, predicted that the Pennsylvania Supreme Court would distinguish between the type of injury to a defective product that constituted mere economic loss compensable under warranty law, and the type of injury that amounted to the sort of physical harm compensable in tort. In delineating the line between tort and warranty law, Judge Adams stated that “the items for which damages are sought are not determinative”; rather “the nature of the defect and the type of risk it poses are the guiding factors.” Id. at 1174. Judge Adams further distinguished damages that accrued slowly over time from those which occurred suddenly; because the damages in that case were “the result of a fire — a sudden and highly dangerous occurrence,” the court held that the complaint fell within the policy of tort law. Id. at 1174-75. We applied the Pennsylvania Glass Sand rationale in East River S.S. Corp. v. Delaval Turbine, Inc., 752 F.2d 903 (3d Cir.1985) (in banc), aff'd on other grounds, — U.S. -, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). There, in the context of admiralty law, we concluded that damages to a supertanker turbine resulting from normal operation and the gradual and unnoticed deterioration of component parts were not recoverable from the manufacturer in tort. Since the defective turbine “did not pose an unreasonable risk of harm to persons or property,” the court held that the plaintiffs “failed to state a cause of action in tort.” Id. at 909. Our conclusion in Delaval Turbine was affirmed by the Supreme Court for different reasons in East River S.S. Corp. v. Transamerica Delaval, Inc., — U.S. -, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). In East River, the Supreme Court, sitting in admiralty, held that “a manufacturer in a commercial relationship has no duty under either a negligence or strict products-liability theory to prevent a" }, { "docid": "7027236", "title": "", "text": "OPINION OF THE COURT ROTH, Circuit Judge: Appellant Sea-Land Service, Inc. (Sea-Land) has appealed the district court’s grant of summary judgment in favor of General Electric Company (GE) on Sea-Land’s tort claims in admiralty for economic loss. The district court dismissed the case based on the holding of the Supreme Court in East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986), that under maritime law no claim lies for either negligence or strict products liability when a commercial party alleges injury only to a product itself, resulting in purely economic loss. Id. at 870-72, 106 S.Ct. at 2802. In this appeal, we must decide 1) whether a defective part, a connecting rod, that caused damage to its surrounding engine was separate property from the engine or was merely a component of the engine; 2) whether East River bars a tort claim for post-sale duty to warn under a negligence theory when the damage is purely economic; and 3) whether East River bars a tort claim for negligent repair when the damage is purely economic. The district court held 1) that the rod was not separate property from the engine, within the meaning of East River, and that East River precluded tort recovery for economic loss as a result of a product damaging itself; 2) that even when the injury is only economic, there is a post-sale duty-to-warn claim if a defendant-manufacturer had actual knowledge that the product was defective, but that GE did not have actual knowledge of the defective part prior to Sea-Land’s injury; and 3) that East River bars a tort claim for negligent repair when the damage is purely economic. I. Facts Sea-Land is a bareboat charterer of many vessels including the Sea-Land Enterprise. The Enterprise was constructed in 1980, and Sea-Land purchased it in 1988 from U.S. Lines. The Enterprise has two ship’s service generators, a ship’s service turbine generator and a ship’s service diesel generator (SSDG). The Enterprise’s SSDG is powered by a GE diesel engine. The diesel engine is made up of “life-cycle” parts, which" }, { "docid": "22699983", "title": "", "text": "on negligence to avoid causing purely economic loss. Cf. Flintkote Co. v. Dravo Corp., 678 F. 2d 942 (CA11 1982); S. M. Wilson & Co. v. Smith International, Inc., 587 F. 2d 1363 (CA9 1978). Thus, whether stated in negligence or strict liability, no products-liability claim lies in admiralty when the only injury claimed is economic loss. While we hold that the fourth count should have been dismissed, we affirm the entry of judgment for Delaval. It is so ordered. Compare East River S.S. Corp. v. Delaval Turbine, Inc., 752 F. 2d 903 (CA3 1985) (en bane) (this case), with Ingram River Equipment, Inc. v. Pott Industries, Inc., 756 F. 2d 649 (CA8 1985), cert. pending, No. 85-12; Miller Industries v. Caterpillar Tractor Co., 733 F. 2d 813 (CA11 1984); Emerson G. M. Diesel, Inc. v. Alaskan Enterprise, 732 F. 2d 1468 (CA9 1984). See also Pan-Alaska Fisheries, Inc. v. Marine Constr. & Design Co., 565 F. 2d 1129 (CA9 1977); and Jig The Third Corp. v. Puritan Marine Ins. Underwriters Corp., 519 F. 2d 171 (CA5 1975). Cf. Louisiana ex rel. Guste v. M/V Testbank, 752 F. 2d 1019 (CA5 1985) (en bane), cert. pending sub nom. White v. M/V Testbank, No. 84-1808. The charterers do not ask us to defer to the law of New Jersey, the forum State. Nor is application of state-law principles required here. New Jersey lacks any “pressing and significant” interest in the tort action. See Kossick v. United Fruit Co., 365 U. S. 731, 739 (1961). In any event, reliance on state law would not help the charterers’ case, since it mandates the same conclusion reached by the District Court and the Court of Appeals: that Delaval had no tort duty to the charterers. See Spring Motors Distributors, Inc. v. Ford Motor Co., 98 N. J. 555, 579, 489 A. 2d 660, 672 (1985). The question is not answered by the Restatement (Second) of Torts §§ 395 and 402A (1965), or by the Uniform Commercial Code, see Wade, Is Section 402A of the Second Restatement of Torts Preempted by the UCC and Therefore" }, { "docid": "22699985", "title": "", "text": "Unconstitutional?, 42 Tenn. L. Rev. 123 (1974). Congress, which has considered adopting national products-liability legislation, also has been wrestling with the question whether economic loss should be recoverable under a products-liability theory. See 1 L. Frumer & M. Friedman, Products Liability § 4C (1986). When S. 100, 99th Cong., 1st Sess. (1985) (the Product Liability Act) was introduced, it excluded, § 2(6), recovery for commercial loss. Suggestions have been made for revising this provision. See Amendment 16, 131 Cong. Rec. 5461 (1985); Amendment 100, id., at 11850, 11851. Other bills also have addressed the issue. See S. 1999, id., at 38772 (1985); Amendment 1951, 132 Cong. Rec. 10304 (1986). See also H. R. 2568, 99th Cong., 1st Sess. (1985); H. R. 4425, 99th Cong., 2d Sess. (1986). The issue also is of concern in the area of conflict of laws. See R. Weintraub, Commentary on the Conflict of Laws § 6.29 (2d ed. 1980). Interestingly, the New Jersey and California Supreme Courts have each taken what appears to be a step in the direction of the other since Santor and Seely. In Spring Motors Distributors, Inc. v. Ford Motor Co., 98 N. J., at 579, 489 A. 2d, at 672, the New Jersey court rejected Santor in the commercial context. And in J’Aire Corp. v. Gregory, 24 Cal. 3d 799, 598 P. 2d 60 (1979), the California court recognized a cause of action for negligent interference with prospective economic advantage. Most of the admiralty cases concerned fishing vessels. See Emerson G. M. Diesel, Inc. v. Alaskan Enterprise, 732 F. 2d 1468, 1472 (CA9 1984) (relying on solicitude for fishermen as a reason for a more protective approach). Delaval concedes that the courts, see Carbone v. Ursich, 209 F. 2d 178, 182 (CA9 1953), and Congress, see 46 U. S. C. App. § 533 (1982 ed., Supp. II), at times have provided special protection for fishermen. This case involves no fishermen. We do not reach the issue whether a tort cause of action can ever be stated in admiralty when the only damages sought are economic. Cf. Ultramares Corp. v. Touche," }, { "docid": "2290258", "title": "", "text": "which a product injures only itself, causing purely economic losses, the appropriate avenue of relief is a breach of warranty action. It explained that “the resulting loss due to repair costs, decreased value, and lost profits is essentially the failure of the purchaser to receive the benefit of the bargain — traditionally the core concept of contract law.” Id. at 2302. At issue in the case before us is whether the East River holding is applicable to fishermen. In footnote five of the opinion, the Court, after acknowledging the split in the Courts of Appeals on the issue at bar, noted: Most of the admiralty cases concerned fishing vessels. See Emerson G.M. Diesel, Inc. v. Alaskan Enterprise, 732 F.2d 1468, 1472 (CA9 1984) (relying on solicitude for fishermen as a reason for a more protective approach). Delaval [the defendant in East River ] concedes that the courts, see Carbone v. Ursich, 209 F.2d 178, 182 (CA9 1953), and Congress, see 46 U.S.C. § 533, at times have provided special protection for fisherman. This case involves no fisherman. The East River opinion, therefore, left open the question of whether its holding was applicable to fishermen. We believe, however, that were the Court to address the issue, it would extend the East River holding to fishermen, and deny them recovery for purely economic losses in products-liability suits. It is true that a number of cases decided before East River relied on a “solicitude for fishermen” in allowing recovery for purely economic losses in products-liability actions brought by fishermen. In Emerson G.M. Diesel, Inc. v. Alaskan Enterprises, 732 F.2d 1468 (9th Cir.1984), cited in footnote five of the East River opinion, the court held that the defendant, the supplier of a defective hose incorporated into the diesel engine on plaintiffs fishing vessel, was strictly liable for plaintiffs repair costs and lost profits even though the defective product injured only itself. The court based its holding on “the familiar principle that seamen are favorites of admiralty and their economic interests entitled to the fullest possible legal protection.” Id. at 1472 (citing Carbone v. Ursich," }, { "docid": "22699980", "title": "", "text": "commercial setting. See UCC §2-715; White & Summers, swpra, at 389, 396, 406-410. In products-liability law, where there is a duty to the public generally, foreseeability is an inadequate brake. Cf. Kinsman Transit Co. v. City of Buffalo, 388 F. 2d 821 (CA2 1968). See also Perlman, Interference with Contract and Other Economic Expectancies: A Clash of Tort and Contract Doctrine, 49 U. Chi. L. Rev. 61, 71-72 (1982). Permitting recovery for all foreseeable claims for purely economic loss could make a manufacturer liable for vast sums. It would be difficult for a manufacturer to take into account the expectations of persons downstream who may encounter its product. In this case, for example, if the charterers — already one step removed from the transaction — were permitted to recover their economic losses, then the companies that subchartered the ships might claim their economic losses from the delays, and the charterers’ customers also might claim their economic losses, and so on. “The law does not spread its protection so far.” Robins Dry Dock & Repair Co. v. Flint, 275 U. S. 303, 309 (1927). And to the extent that courts try to limit purely economic damages in tort, they do so by relying on a far murkier line, one that negates the charterers’ contention that permitting such recovery under a prcducts-liability theory enables admiralty courts to avoid difficult line drawing. Cf. Ultramares Corp. v. Touche, 255 N. Y. 170, 174 N. E. 441 (1931); Louisiana ex rel. Guste v. M/V Testbank, 752 F. 2d 1019, 1046-1052 (CA5 1985) (en banc) (dissenting opinion), cert. pending sub nom. White v. M/V Testbank, No. 84-1808. D For the first three counts, the defective turbine components allegedly injured only the turbines themselves. Therefore, a strict products-liability theory of recovery is unavailable to the charterers. Any warranty claims would be subject to Delaval’s limitation, both in time and scope, of its warranty liability. App. 78-79. The record indicates that Seatrain and Delaval reached a settlement agreement. Deposition of Stephen Russell, p. 32. We were informed that these charterers could not have asserted the warranty claims. See" }, { "docid": "18975939", "title": "", "text": "four counts allege strict liability in tort, based on the alleged defects in the turbines manufactured by Delaval for the STUYVESANT, the WILLIAMSBURGH, the BROOKLYN, and the BAY RIDGE, re spectively. The fifth count alleges negligence in the installation of the astern guardian valve of the BAY RIDGE. The second amended complaint invokes jurisdiction on the basis of Fed.R.Civ.P. 9(h) (admiralty), and the district court treated all of the counts of the complaint as being governed by federal maritime law. Delaval moved for summary judgment, arguing that the charterers’ claims were solely for economic loss, and that such loss was not recoverable in tort. In an opinion filed on October 5, 1982, the district court adopted the majority common-law position that losses caused by qualitative product defects are not recoverable in tort absent unreasonable risk of harm to persons or property other than the product. See Pennsylvania Glass Sand v. Caterpillar Tractor Co., 652 F.2d 1165 (3d Cir.1981). The court granted summary judgment on counts one through four on the basis that the strict liability allegations failed to state a cause of action in admiralty with respect to any of the vessels. The district court denied summary judgment on the negligence claim at that time, but in an opinion and order filed on January 24,1983, reversed itself and granted Delaval’s motion for summary judgment in its entirety. We affirm. II. The first issue we must decide is whether the charterers’ claims are within the maritime jurisdiction of the federal courts. 28 U.S.C. § 1333(1) (1982). The district court found that all five counts were within maritime jurisdiction because the “nature of the vessels as mammouth oil tankers engaged in international commercial trade places them and the functioning vel non of their turbines close to the heart of federal admiralty concerns.” (A-259). We agree. In Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), the Supreme Court set forth a flexible two-part test for determining whether a claim is maritime in character and hence within the admiralty jurisdiction of the federal courts. First, there" }, { "docid": "18975938", "title": "", "text": "1974. After the inspection of the STUYVESANT turned up problems with its turbine, both the BROOKLYN and WILLIAMSBURGH, which were already in service, were inspected. These inspections revealed damage similar to that found in the STUYVESANT’s high pressure turbine. The damaged parts were repaired and reinforced by Delaval. Subsequently, in the summer of 1978, the first stage steam reversing rings of both ships were replaced by newly-designed rings identical to the one placed in the STUYVESANT. Between December 8, 1979, and January 24, 1980, additional repairs were made on the WILLIAMS-BURGH’s low pressure turbine. All of these repairs and replacements took place in port. The BAY RIDGE was completed in early 1979. Although its high pressure turbine operated with one of Delaval’s newly designed rings, its low pressure turbine suffered damage in March 1980, allegedly as a result of the improper installation of the vessel’s astern guardian valve. The BAY RIDGE was temporarily repaired in Talcahuano, Chile, after which it resumed its journey to Valdez. The charterer’s second amended complaint contains five counts. The first four counts allege strict liability in tort, based on the alleged defects in the turbines manufactured by Delaval for the STUYVESANT, the WILLIAMSBURGH, the BROOKLYN, and the BAY RIDGE, re spectively. The fifth count alleges negligence in the installation of the astern guardian valve of the BAY RIDGE. The second amended complaint invokes jurisdiction on the basis of Fed.R.Civ.P. 9(h) (admiralty), and the district court treated all of the counts of the complaint as being governed by federal maritime law. Delaval moved for summary judgment, arguing that the charterers’ claims were solely for economic loss, and that such loss was not recoverable in tort. In an opinion filed on October 5, 1982, the district court adopted the majority common-law position that losses caused by qualitative product defects are not recoverable in tort absent unreasonable risk of harm to persons or property other than the product. See Pennsylvania Glass Sand v. Caterpillar Tractor Co., 652 F.2d 1165 (3d Cir.1981). The court granted summary judgment on counts one through four on the basis that the strict liability" }, { "docid": "22699969", "title": "", "text": "For similar reasons of safety, the manufacturer’s duty of care was broadened to include protection against property damage. See Marsh Wood Products Co. v. Babcock & Wilcox Co., 207 Wis. 209, 226, 240 N. W. 392, 399 (1932); Genesee County Patrons Fire Relief Assn. v. L. Sonneborn Sons, Inc., 263 N. Y. 463, 469-473, 189 N. E. 551, 553-555 (1934). Such damage is considered so akin to personal injury that the two are treated alike. See Seely v. White Motor Co., 63 Cal. 2d, at 19, 403 P. 2d, at 152. In the traditional “property damage” cases, the defective product damages other property. In this case, there was no damage to “other” property. Rather, the first, second, and third counts allege that each supertanker’s defectively designed turbine components damaged only the turbine itself. Since each turbine was supplied by Delaval as an integrated package, see App. 162-163, each is properly regarded as a single unit. “Since all but the very simplest of machines have component parts, [a contrary] holding would require a finding of ‘property damage’ in virtually every case where a product damages itself. Such a holding would eliminate the distinction between warranty and strict products liability.” Northern Power & Engineering Corp. v. Caterpillar Tractor Co., 623 P. 2d 324, 330 (Alaska 1981). The fifth count also alleges injury to the product itself. Before the high-pressure and low-pressure turbines could become an operational propulsion system, they were connected to piping and valves under the supervision of Delaval personnel. See App. 78, 162-163, 181. Delaval’s supervisory obligations were part of its manufacturing agreement. The fifth count thus can best be read to allege that Delaval’s negligent manufacture of the propulsion system — by allowing the installation in reverse of the astern guardian valve — damaged the propulsion system. Cf. Lewis v. Timco, Inc., 736 F. 2d 163, 165-166 (CA5 1984). Obviously, damage to a product itself has certain attributes of a products-liability claim. But the injury suffered — the failure of the product to function properly — is the essence of a warranty action, through which a contracting party can" }, { "docid": "1047760", "title": "", "text": "or physical damage are arbitrary. Emerson, 732 F.2d at 1474. In Miller Industries v. Caterpillar Tractor Co., 733 F.2d 813 (11th Cir.1984), the court affirmed an award of damages for lost profits resulting from the defendant’s failure to warn the plaintiffs of a faulty engine gear and the potential problems of piston wrist pins. The court held the failure to warn formed the basis for a negligence action under maritime law even though no “physical damage” had occurred. Id. at 818. The court based its holding on Jig the Third Corp. v. Puritan Marine Ins. Underwriters Corp., 519 F.2d 171 (5th Cir.1975). In that case, the Princess, a shrimp boat, sank without loss of life or personal injury because of a defective propeller shaft. One of the defendants argued that no recovery should be allowed because the genesis of the relationship between the plaintiff and the defendant was contractual. The court allowed recovery for loss of the ship and its gear on the ground that the seller’s liability for negligence covers any kind of physical harm, even harm to the defective chattel itself. Id. at 175. By contrast, East River S.S. Corp. v. Delaval Turbine, Inc., 752 F.2d 903 (3d Cir.1985) (en banc), holds that no recovery is available in a tort action in admiralty for damages to a defective product itself unless the design defect creates an unreasonable risk of harm to persons or property other than the product itself. The Third Circuit has thus created a conflict with the Fifth, Ninth, and Eleventh Circuits, and we must choose which line of cases to follow. We think the better reasoning supports allowing recovery in tort, at least where, as here, there is a finding of actual negligence, as opposed to a mere defect not resulting, from any lack of due care. If a manufacturer is negligent, that is, if its product was not put together with the ordinary care that a reasonably prudent manufacturer should have used, it should pay for the resulting loss. The contrary rule, that the loss should be borne by the innocent purchaser, is unjust," }, { "docid": "22699970", "title": "", "text": "damage’ in virtually every case where a product damages itself. Such a holding would eliminate the distinction between warranty and strict products liability.” Northern Power & Engineering Corp. v. Caterpillar Tractor Co., 623 P. 2d 324, 330 (Alaska 1981). The fifth count also alleges injury to the product itself. Before the high-pressure and low-pressure turbines could become an operational propulsion system, they were connected to piping and valves under the supervision of Delaval personnel. See App. 78, 162-163, 181. Delaval’s supervisory obligations were part of its manufacturing agreement. The fifth count thus can best be read to allege that Delaval’s negligent manufacture of the propulsion system — by allowing the installation in reverse of the astern guardian valve — damaged the propulsion system. Cf. Lewis v. Timco, Inc., 736 F. 2d 163, 165-166 (CA5 1984). Obviously, damage to a product itself has certain attributes of a products-liability claim. But the injury suffered — the failure of the product to function properly — is the essence of a warranty action, through which a contracting party can seek to recoup the benefit of its bargain. B The intriguing question whether injury to a product itself may be brought in tort has spawned a variety of answers. At one end of the spectrum, the case that created the majority land-based approach, Seely v. White Motor Co., 63 Cal. 2d 9, 403 P. 2d 145 (1965) (defective truck), held that preserving a proper role for the law of warranty precludes imposing tort liability if a defective product causes purely monetary harm. See also Jones & Laughlin Steel Corp. v. Johns-Manville Sales Corp., 626 F. 2d 280, 287, and n. 13 (CA3 1980) (citing cases). At the other end of the spectrum is the minority land-based approach, whose progenitor, Santor v. A & M Karagheusian, Inc., 44 N. J. 52, 66-67, 207 A. 2d 305, 312-313 (1965) (marred carpeting), held that a manufacturer’s duty to make nondefective products encompassed injury to the product it self, whether or not the defect created an unreasonable risk of harm. See also LaCrosse v. Schubert, Schroeder & Associates, Inc.," }, { "docid": "23161053", "title": "", "text": "law. Id. at 1174-75. We applied the Pennsylvania Glass Sand rationale in East River S.S. Corp. v. Delaval Turbine, Inc., 752 F.2d 903 (3d Cir.1985) (in banc), aff'd on other grounds, — U.S. -, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). There, in the context of admiralty law, we concluded that damages to a supertanker turbine resulting from normal operation and the gradual and unnoticed deterioration of component parts were not recoverable from the manufacturer in tort. Since the defective turbine “did not pose an unreasonable risk of harm to persons or property,” the court held that the plaintiffs “failed to state a cause of action in tort.” Id. at 909. Our conclusion in Delaval Turbine was affirmed by the Supreme Court for different reasons in East River S.S. Corp. v. Transamerica Delaval, Inc., — U.S. -, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). In East River, the Supreme Court, sitting in admiralty, held that “a manufacturer in a commercial relationship has no duty under either a negligence or strict products-liability theory to prevent a product from injuring itself.” — U.S. at -, 106 S.Ct. at 2302. In so holding, the Court adopted in principle the majority rule of Seely v. White Motor Co., 63 Cal.2d 9, 403 P.2d 145, 45 Cal.Rptr. 17 (1965), which precludes courts from imposing tort liability on a manufacturer if a defective product injures only itself. The Court labeled our Pennsylvania Glass Sand formulation an “intermediate” approach and rejected our position as “unsatisfactory”: The intermediate positions, which essentially turn on the degree of risk, are too indeterminate to enable manufacturers easily to structure their business behavior. Nor do we find persuasive a distinction that rests on the manner in which the product is injured. We realize that the damage may be qualitative, occurring through gradual deterioration or internal breakage. Or it may be calamitous____ But either way, since by definition no person or other property is damaged, the resulting loss is purely economic. Even when the harm to the product itself occurs through an abrupt, accident-like event, the resulting loss due to repair costs, decreased" } ]

[ { "docid": "23230520", "title": "", "text": "1681s-2(a) prohibits any person from “furnishing] any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate.” Id. § 1681s-2(a)(1)(A). Congress expressly limited furnishers’ liability under § 1681s-2(a) by prohibiting private suits for violations of that portion of the statute. Id. § 1681s-2(c)(1). Section 1681s-2(b), the provision at issue in this case, outlines a furnisher’s duties when a consumer disputes the completeness or accuracy of information in their credit report. Under the FCRA, consumers generally notify CRAs of such disputes. See id. § 1681i(a)(1). Although a consumer may dispute credit information directly to a furnisher, as Chiang has done, the consumer has no private right of action if the furnisher does not reasonably investigate the consumer’s claim after direct notification. When a customer disputes credit information to a CRA, the CRA must advise the furnisher of that data that a dispute exists and provide the furnisher with “all relevant information regarding the dispute that the agency has received from the consumer.” Id. § 1681i(a)(2)(A). Once notified by a CRA, a furnisher must (A) conduct an investigation with respect to the disputed information; (B) review all relevant information provided by the consumer reporting agency. ...; (C) report the results of the investigation to the consumer reporting agency; (D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis; and (E) if an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified after any reinvestigation ..., for purposes of reporting to a consumer reporting agency only, as appropriate, based on the results of the reinvestigation promptly— (i) modify that item of information; (ii) delete that item of information; or (iii) permanently block the reporting of that item of information. Id. § 1681s — 2(b)(1); see also Lapine et al., supra § 153.06, at 153-96 to -97. Although a furnisher" } ]

[ { "docid": "19596158", "title": "", "text": "results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis; and (E) if an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified after any reinvestigation under paragraph (1), for purposes of reporting to a consumer reporting agency only, as appropriate, based on the results of the reinvestigation promptly-- (i) modify that item of information; (ii) delete that item of information; or (iii) permanently block the reporting of that item of information. 15 U.S.C. § 1681s-2(b)(1). FCRA \"expressly creates a private right of action to enforce many of its terms.\" Boggio , 696 F.3d at 615. Pursuant to § 1681s-2(c), however, consumers are precluded \"from enforcing the requirement that furnishers, under § 1681s-2(a), initially provide complete and accurate consumer information to a CRA.\" Id . However, \"FCRA expressly creates a private right of action against a furnisher who fails to satisfy one of five duties identified in § 1681s-2(b).\" Id . at 618. A consumer is permitted to demonstrate that a furnisher negligently breached one of these duties, under § 1681o, or willfully breached one of them, under § 1681n. Id. Under § 1681s-2(b)(1), iServe and BSI were required, \"after receiving notice of a consumer dispute from a credit reporting agency, to conduct a reasonable investigation of their records to determine whether the disputed information can be verified.\" Johnson v. MBNA Am. Bank, NA , 357 F.3d 426, 431 (4th Cir. 2004). There is no issue that Pittman notified the CRAs of his dispute, or that Experian and Equifax notified the Servicers of the dispute. There is a question about whether the Servicers failed to reasonably investigate or rectify the disputed charge. The district court never reached this question, however, because it reached only the \"threshold question of whether there were reporting errors by iServe and BSI.\" (R. 96, Opinion, PageID # 2380.) The district court found that \"an error is an essential part of a[ ] FCRA claim.\" (Id. (citing Spence v. TRW, Inc." }, { "docid": "22583740", "title": "", "text": "against “[a] person” furnishing information “relating to a consumer” to a CRA “if the person knows or consciously avoids knowing that the information is inaccurate.” This prohibition is reinforced in subsection (1)(B) by a prohibition of furnishing inaccurate information after notice of actual inaccuracy from the affected consumer. Subsection (2) imposes a duty on regular furnishers of credit information to correct and update the information they provide so that the information is “complete and accurate.” Subsection (3) imposes a duty on such furnishers to notify CRAs if a consumer disputes the information furnished. Subsection (4) obliges furnishers to notify the CRA of the closure of a consumer’s account, and subsection (5) imposes a similar obligation to notify the CRA of delinquent accounts. Most of the provisions of § 1681s-2(a) are for the protection of consumers. There would be no doubt that a consumer could sue for their violation under sections 1681n & 0 were it not for §§ 1681s-2(e) and (d). Subsection (c) expressly provides that sections 1681n & 0 “do not apply to any failure to comply with subsection (a) of this section, except as provided in section 1681s(c)(l)(B) of this title.” The referenced section permits certain suits by States for damages. This limitation on liability and enforcement is reinforced by subsection (d) of § 1681s-2, which provides that subsection (a) “shall be enforced exclusively under section 1681s of this title by the Federal agencies and officials and the State officials identified in that section.” Consequently, private enforcement under §§ 1681n & 0 is excluded. We turn to subsection 1681s-2(b). This section specifies what happens after a CRA receives notice “pursuant to section 1681i(a)(2) ... of a dispute with regard to the completeness or accuracy of information provided by a person” to the CRA. The person, i.e., the furnisher of the disputed information, has four duties: to conduct an “investigation with respect to the disputed information;”, to review all relevant information provided by the CRA; to report the results of its investigation to the CRA; and if the investigation finds the information is incomplete or inaccurate to report those'" }, { "docid": "22049065", "title": "", "text": "agencies exercise their grave responsibilities [in assembling and evaluating consumers’ credit, and disseminating information about consumers’ credit] with fairness, impartiality, and a respect for the consumer’s right to privacy.” 15 U.S.C. § 1681(a)(4). In addition, to ensure that credit reports are accurate, the FCRA imposes some duties on the sources that provide credit information to CRAs, called “furnishers” in the statute. Section 1681s-2 sets forth “[responsibilities of furnishers of information to consumer reporting agencies,” delineating two categories of responsibilities. Subsection (a) details the duty “to provide accurate information,” and includes the following duty: (3) Duty to provide notice of dispute If the completeness or accuracy of any information furnished by any person to any consumer reporting agency is disputed to such person by a consumer, the person may not furnish the information to any consumer reporting agency without notice that such information is disputed by the consumer. § 1681s-2(a)(3). Section 1681s-2(b) imposes a second category of duties on furnishers of information. These obligations are triggered “upon notice of dispute” — that is, when a person who furnished information to a CRA receives notice from the CRA that the consumer disputes the information. See § 1681i(a)(2) (requiring CRAs promptly to provide such notification containing all relevant information about the consumer’s dispute). Subsection 1681s-2(b) provides that, after receiving a notice of dispute, the furnisher shall: (A) conduct an investigation with respect to the disputed information; (B) review all relevant information provided by the [CRA] pursuant to section 1681i(a)(2) ...; (C) report the results of the investigation to the [CRA]; (D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other [CRAs] to which the person furnished the information ...; and (E) if an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified after any reinvestigation under paragraph (1) ... (i) modify ... (ii) delete[or] (iii) permanently block the reporting of that item of information [to the CRAs]. § 1681s-2(b)(l). These duties arise only after the furnisher receives notice of dispute from a CRA; notice of a" }, { "docid": "23230527", "title": "", "text": "the statute support our interpretation. Section 1681i(a) mandates that a CRA reinvestigate reported information to determine whether the disputed data is “inaccurate.” Section 1681s-2(b) imposes essentially the same obligation on furnishers of information, requiring them to determine if furnished information is “incomplete or inaccurate.” “The FCRA is intended to protect consumers against the compilation and dissemination of inaccurate credit information.” DeAndrade, 523 F.3d at 67. In light of the parallel obligations imposed on CRAs and furnishers — and the narrow purpose of the amendments to the FCRA — that same rationale supports requiring a showing of actual inaccuracy in suits against furnishers. Practical considerations also point to our conclusion. As in DeAndrade, it is “difficult to see how a plaintiff could prevail on a claim for damages” based on an unreasonable investigation of disputed data “without a showing that the disputed information ... was, in fact, inaccurate.” Id. We emphasize that, just as in suits against CRAs, a plaintiffs required showing is factual inaccuracy, rather than the existence of disputed legal questions. Id. at 68. Like CRAs, furnishers are “neither qualified nor obligated to resolve” matters that “turn[ ] on questions that can only be resolved by a court of law.” Id. Finally, what is a reasonable investigation by a furnisher may vary depending on the circumstances. For instance, a more limited investigation may be appropriate when CRAs provide the furnisher with vague or cursory information about a consumer’s dispute. The statute is clear that the investigation is directed to the information provided by the CRA. A CRA’s notice informs a furnisher of “the nature of the consumer’s challenge to the reported debt, and it is the receipt of this notice that gives rise to the furnish-er’s obligation to conduct a reasonable investigation.” Gorman, 584 F.3d at 1157; see also 15 U.S.C. § 1681s-2(b)(1)(B) (requiring a furnisher to review “all relevant information” provided to it by a CRA). Accordingly, the central inquiry when assessing a consumer’s claim under § 1681s-2(b) is “whether the furnisher’s procedures were reasonable in light of what it learned about the nature of the dispute from" }, { "docid": "23388938", "title": "", "text": "dispute verification form simply reflected Saunders’ delinquency on his account and thus was not “incomplete or inaccurate” as a matter of law. Second, BB & T maintains that even if its response violated its duties under § 1681s-2(b)(1), Saunders failed to present sufficient evidence of intent to establish a willful violation. Third, BB & T insists that Saunders did not have a legitimate excuse for nonpayment after the March communications and so merited the poor credit rating he received from the CRAs. We consider each argument in turn. 1. Despite the statutory text and precedent detailed above, BB & T contends that reporting a debt without reporting its disputed nature can never be deemed inaccurate as a matter of law. BB & T argues that furnishers need not report affirmative defenses raised by consumers and suggests that the consumer’s filing of a dispute with the CRAs renders any reporting on the dispute by the furnisher superfluous. According to BB & T, FCRA requires this result. BB & T relies on asserted critical differences between § 1681s-2(a) and § 1681s-2(b). The former imposes a duty on furnishers to provide accurate information, see § 1681s-2(a); inter alia, it requires furnishers to report consumer disputes, see § 1681s-2(a)(3). BB & T contends that the absence of a specific requirement to report consumer disputes in § 1681s-2(b) means that Congress did not intend for furnishers to report disputes to CRAs when responding to their requests for consumer dispute verification. This argument ignores the interplay of § 1681s-2(a) and § 1681s-2(b). The first subsection, § 1681s-2(a), provides that furnishers have a general duty to provide accurate and complete information; the next subsection, § 1681s-2(b), imposes an obligation to review the previously disclosed information and report whether it was “incomplete or inaccurate” upon receipt of a notice of dispute from a CRA. The second subsection thus requires furnishers to review their prior report for accuracy and completeness; it does not set forth specific requirements as to what information must be reported, because these requirements have already been set forth in the first subsection. No court has" }, { "docid": "22049086", "title": "", "text": "disputes is procedural. An investigation is not necessarily unreasonable because it results in a substantive conclusion unfavorable to the consumer, even if that conclusion turns out to be inaccurate. In short, although “reasonableness” is generally a question for a finder of fact, summary judgment in this case was appropriate. 3. MBNA’s failure to provide notice of dispute Gorman next argues that MBNA failed to notify the CRAs that he continued to dispute the delinquent charges on his account. He contends that in reporting the delinquency without also reporting his ongoing dispute, MBNA violated its obligations under 12 C.F.R. § 226.13, and thus furnished “incomplete or inaccurate” credit information in violation of the FCRA. MBNA neither concedes nor disputes that it was so obligated, but argues on summary judgment that the statute does not permit Gorman to raise this claim. Also, in the alternative, MBNA contends that Gorman did not submit enough evidence to show whether his credit reports included a notice that the delinquency was disputed or whether MBNA did not so notify the CRAs. We must decide (1) whether the failure to notify the CRAs that the delinquent debt was disputed is actionable under § 1681s-2(b), and if so, (2) whether Gorman introduced sufficient evidence on summary judgment to show that MBNA so notified the CRAs. a. Gorman’s Claim is Actionable If a consumer disputes the accuracy of credit information, the FCRA requires furnishers to report that fact when reporting the disputed information. Section 1681s-2(a)(3) provides: “If the completeness or accuracy of any information furnished by any person to any consumer reporting agency is disputed to such person by a consumer, the person may not furnish the information to any consumer reporting agency without notice that such information is disputed by the consumer.” As noted, however, the statute expressly provides that a claim for violation of this requirement can be pursued only by federal or state officials, and not by a private party. § 1681s—2(c)(1) (“Except [for circumstances not relevant here], sections 1681n and 1681o of this title[providing private right of action for willful and negligent violations] do not" }, { "docid": "13074500", "title": "", "text": "the requirements of § 1681s-2(B)(1). They maintain the district court erred in determining, based on the December 5 letter from CMS, their investigation concluded on that date, and the subsequent two and a half month delay in removing the negative credit reporting was “some evidence” the Ocwen Defendants violated the FCRA. (App. at 2392.) The Ocwen Defendants argue CMS’s December 5 letter cannot be attributed to them, and therefore, there is no evidence their investigation concluded on that date. As a result, they maintain there is no evidence their investigation concluded or they were “on notice that [their] credit reporting was incorrect,” requiring them to take action to have it corrected. (Ocwen Defs.’ Answer Br. at 39.) Although less than clear, the Ocwen Defendants’ argument appears to be based on a misinterpretation of the requirement of § 1681s-2(b)(l)(D); specifically, they appear to argue that furnishers of information, such as themselves, have thirty days from the conclusion of their investigation, whenever that may be, to inform CRAs of the results and delete or modify the reporting if the information is found to be incomplete or inaccurate. However, § 1681s-2(b)(2) requires furnishers of information to complete their obligations under subsection (b)(1) “before the expiration of the period under section 1681i(a)(l),” which is thirty days from the date the CRA receives notice of the dispute. 15 U.S.C. §§ 1681s-2(b)(2), 1681i(a)(l); see also Marshall v. Swift River Acad., LLC, 327 Fed.Appx. 13, 15 (9th Cir.2009) (stating § 1681s-2(b)(2) “obligates] furnishers to fulfill their Section 1681s-2(b) duties by the CRA’s 30-day deadline for completing its reinvestigation”). As discussed above, there is at least a genuine dispute of fact as to whether the Ocwen Defendants’ reporting created a materially misleading impression, rendering it “incomplete or inaccurate” under § 1681s-2(b). As a result, a jury could conclude the Ocwen Defendants’ failure to remove or modify the negative reporting until February 15, 2007 — nearly four months after TransUn-ion notified them of the dispute — violated § 1681s-2(b). We are therefore unable to affirm summary judgment on either of the Ocwen Defendants’ alternative bases. II. Fair Debt Collection" }, { "docid": "23230519", "title": "", "text": "adopted was a new section governing the responsibilities of so-called “furnishers” of information to CRAs. Consumer Credit Reporting Reform Act of 1996, Pub.L. No. 104-208, ch. 1, sec. 2413, § 623, 110 Stat. 3009-426, 3009-447 to -449 (codified as amended at 15 U.S.C. § 1681s-2). This addition was intended to close an identified “gap in the FCRA’s coverage,” whereby even dutiful investigations of consumer disputes by CRAs could be frustrated by furnishers’ irresponsible verification of inaccurate information, without legal consequence to the furnishers. S.Rep. No. 103-209, at 6 (1993). Verizon NE is sued here as a furnisher of information under that section. Under § 1681s-2, furnishers may not provide inaccurate information to consumer reporting agencies, 15 U.S.C. § 1681s-2(a)(1), and also have specific duties in the event of a dispute over furnished information, id. § 1681s-2(b). Only the second of these duties is subject to a private cause of action. Chiang’s appeal concerns the latter obligation — Verizon NE’s investigation into disputed information. To understand his argument, we outline both provisions of the statute. Section 1681s-2(a) prohibits any person from “furnishing] any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate.” Id. § 1681s-2(a)(1)(A). Congress expressly limited furnishers’ liability under § 1681s-2(a) by prohibiting private suits for violations of that portion of the statute. Id. § 1681s-2(c)(1). Section 1681s-2(b), the provision at issue in this case, outlines a furnisher’s duties when a consumer disputes the completeness or accuracy of information in their credit report. Under the FCRA, consumers generally notify CRAs of such disputes. See id. § 1681i(a)(1). Although a consumer may dispute credit information directly to a furnisher, as Chiang has done, the consumer has no private right of action if the furnisher does not reasonably investigate the consumer’s claim after direct notification. When a customer disputes credit information to a CRA, the CRA must advise the furnisher of that data that a dispute exists and provide the furnisher with “all relevant information regarding the dispute that the agency has received from the" }, { "docid": "22049087", "title": "", "text": "We must decide (1) whether the failure to notify the CRAs that the delinquent debt was disputed is actionable under § 1681s-2(b), and if so, (2) whether Gorman introduced sufficient evidence on summary judgment to show that MBNA so notified the CRAs. a. Gorman’s Claim is Actionable If a consumer disputes the accuracy of credit information, the FCRA requires furnishers to report that fact when reporting the disputed information. Section 1681s-2(a)(3) provides: “If the completeness or accuracy of any information furnished by any person to any consumer reporting agency is disputed to such person by a consumer, the person may not furnish the information to any consumer reporting agency without notice that such information is disputed by the consumer.” As noted, however, the statute expressly provides that a claim for violation of this requirement can be pursued only by federal or state officials, and not by a private party. § 1681s—2(c)(1) (“Except [for circumstances not relevant here], sections 1681n and 1681o of this title[providing private right of action for willful and negligent violations] do not apply to any violation of ... subsection (a) of this section, including any regulations issued thereunder.”); see also Nelson, 282 F.3d at 1059. Thus, Gorman has no private right of action under § 1681s-2(a)(3) to proceed against MBNA for its initial failure to notify the CRAs that he disputed the Four Peaks charges. Gorman does have a private right of action, however, to challenge MBNA’s subsequent failure to so notify the CRAs after receiving notice of Gorman’s dispute under § 1681s-2(b). In addition to requiring that a furnisher conduct a reasonable investigation of a consumer dispute, § 1681s-2(b) also requires a creditor, upon receiving notice of such dispute, to both report the results of the investigation and, “if the investigation finds that the information is incomplete or inaccurate, report those results” to the CRAs. § 1681s-2(b)(1)(C), (D). Gorman argues that MBNA’s reporting of the Four Peaks charge and delinquency, without a notation that the debt was disputed, was an “incomplete or inaccurate” entry on his credit file that MBNA failed to correct after its investigation." }, { "docid": "15129273", "title": "", "text": "and Accurate Credit Transactions Act of 2003: Will Preemption of State Credit Reporting Laivs Harm Consumers?, 93 Geo. L.J. 1143, 1154 (2005). Included within the new subsection added by the CCRRA is 15 U.S.C. § 1681t(b)(l)(F), the preemption provision at issue in this case. It states: No requirement or prohibition may be imposed under the laws of any State (1) with respect to any subject matter regulated under ... (F) section 1681s-2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies.... Section 1681s-2 describes the responsibilities of those who report credit information to CRAs. Section 1681s-2(a) explains the “[d]uty of furnishers of information to provide accurate information,” which includes correcting any errors in reporting. 15 U.S.C. § 1681s-2(a)(l)-(2). Section 1681s-2(b) contains the duties of furnishers of information “[a]fter receiving notice ... of a dispute with regard to the completeness or accuracy of any information provided by a person to a consumer reporting agency.” 15 U.S.C. § 1681s — 2(b)(1). These duties include conducting an investigation into the dispute and correcting any errors discovered with the CRAs. Id. Ross’s NCUDTPA claim under § 75-1.1 runs into the teeth of the FCRA preemption provision. Her claim concerns WaMu’s reporting of inaccurate credit information to CRAs, an area regulated in great detail under § 1681s-2(a)-(b). Because Ross’s NCUDTPA claim seeks to use § 75-1.1 as a “requirement or prohibition” under North Carolina law concerning “subject matter regulated under section 1681s-2,” it is squarely preempted by the plain language of the FCRA. 15 U.S.C. § 1681t(b)(l)(F). B. Ross, however, argues that her claim is expressly authorized by 15 U.S.C. § 1681h(e) because WaMu acted with “malice or willful intent to injure.” This argument is unavailing. Our analysis begins with an overview of § 1681h(e). Section 1681h regulates the disclosures that CRAs must provide to consumers under § 1681g. Section 1681g requires CRAs to disclose to consumers the information in their credit file upon request. Sections 1681h(a) through 1681h(d) contain the procedures CRAs must follow when providing these disclosures. Section 1681h(e) then states: Except as provided in sections" }, { "docid": "17209159", "title": "", "text": "regulates how the furnishers of credit information must respond when they are given notice of a dispute over consumer credit records. Section 1681s-2(b) provides, in relevant part: (1) After receiving notice pursuant to section 1681i(a)(2) of this title of a dispute with regard to the completeness or accuracy of any information provided by a person to a consumer reporting agency, the person shall— (A) conduct an investigation with respect to the disputed information; (B) review all relevant information provided by the consumer reporting agency pursuant to section 1681i(a)(2) of this title; (C) report the results of the investigation to the consumer reporting agency; (D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis; and (E) if an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified after any reinvestigation under paragraph (1), for purposes of reporting to a consumer reporting agency only, as appropriate, based on the results of the reinvestigation promptly— (i) modify that item of information; (ii) delete that item of information; oje (iii) permanently block the reporting of that item of information. 15 U.S.C. § 1681s — 2(b). If a furnisher fails to comply with these requirements, then § 1681n and § 1681o “authorize!] consumers to bring suit for damages caused by a furnisher’s ... breach” when that breach is willful or negligent, respectively. Seamans v. Temple Univ., 744 F.3d 853, 864 (3d Cir.2014). First, however, FCRA provides that a consumer who disputes an item on his credit reports must notify a CRA, which must in turn give notice to the furnisher that provided the disputed credit information. To succeed in a suit arising under § 1681s-2(b), therefore, “a plaintiff must prove (1), that he notified a [CRA] of the dispute under § 1681i, (2) that the [CRA] notified the party who furnished the information ... and (3) that the party who furnished the information failed to investigate" }, { "docid": "17209160", "title": "", "text": "to a consumer reporting agency only, as appropriate, based on the results of the reinvestigation promptly— (i) modify that item of information; (ii) delete that item of information; oje (iii) permanently block the reporting of that item of information. 15 U.S.C. § 1681s — 2(b). If a furnisher fails to comply with these requirements, then § 1681n and § 1681o “authorize!] consumers to bring suit for damages caused by a furnisher’s ... breach” when that breach is willful or negligent, respectively. Seamans v. Temple Univ., 744 F.3d 853, 864 (3d Cir.2014). First, however, FCRA provides that a consumer who disputes an item on his credit reports must notify a CRA, which must in turn give notice to the furnisher that provided the disputed credit information. To succeed in a suit arising under § 1681s-2(b), therefore, “a plaintiff must prove (1), that he notified a [CRA] of the dispute under § 1681i, (2) that the [CRA] notified the party who furnished the information ... and (3) that the party who furnished the information failed to investigate or rectify the disputed charge.” Taggart v. Norwest Mortgage, Inc., No. CIV.A. 09-1281, 2010 WL 114946, at *9 (E.D.Pa. Jan. 11, 2010), aff'd, 539 Fed.Appx. 42 (3d Cir.2013). CitiMortgage and JPMorgan assert at the outset that certain plaintiffs failed to plead that they ever notified a CRA about their disputed information, undermining any claim they may have under FCRA. Specifically, CitiMortgage argues that no such allegation was made regarding Paul Duffin, and JPMorgan argues the same for Wanda Adams (a non-party). It is true that the complaint specifically alleges that the Duffins notified the CRAs only about their dispute with Wells Fargo, and that only Troy (not Wanda) Adams notified the CRAs about his dispute with JPMorgan. See First Am. Compl. (“FAC”) 18 ¶ 56, 20 ¶ 61. But the amended complaint also sets out that “Plaintiffs, after having received and reviewed their respective credit reports, each and all ... requested that the respective [CRA] investigate and seek an investigation by the furnisher of the information, and correct the credit reports of the respective plaintiffs.”" }, { "docid": "22049088", "title": "", "text": "apply to any violation of ... subsection (a) of this section, including any regulations issued thereunder.”); see also Nelson, 282 F.3d at 1059. Thus, Gorman has no private right of action under § 1681s-2(a)(3) to proceed against MBNA for its initial failure to notify the CRAs that he disputed the Four Peaks charges. Gorman does have a private right of action, however, to challenge MBNA’s subsequent failure to so notify the CRAs after receiving notice of Gorman’s dispute under § 1681s-2(b). In addition to requiring that a furnisher conduct a reasonable investigation of a consumer dispute, § 1681s-2(b) also requires a creditor, upon receiving notice of such dispute, to both report the results of the investigation and, “if the investigation finds that the information is incomplete or inaccurate, report those results” to the CRAs. § 1681s-2(b)(1)(C), (D). Gorman argues that MBNA’s reporting of the Four Peaks charge and delinquency, without a notation that the debt was disputed, was an “incomplete or inaccurate” entry on his credit file that MBNA failed to correct after its investigation. As this claim alleges that obligations imposed under § 1681s-2(b) were violated, it is available to private individuals. The Fourth Circuit has recently held that after receiving notice of dispute, a furnisher’s decision to continue reporting a disputed debt without any notation of the dispute presents a cognizable claim under § 1681s-2(b). See Saunders v. Branch Banking & Trust Co. of Va., 526 F.3d 142, 150 (4th Cir.2008). In Saunders, a consumer alleged that he incurred late fees and penalties as a result of a creditor’s own admitted accounting errors; the creditor, Branch Banking & Trust (BB & T), refused to waive the fees, and the consumer responded by withholding payments on the loan. Id. at 145-46. BB & T reported the loan to the CRAs as “in repossession status,” and, after suffering adverse credit decisions, the consumer contacted the CRAs to report the dispute. Id. at 146. The CRAs sent a notice of dispute to BB & T, triggering its obligations to investigate and verify the accuracy of the reported information under § 1681s-2(b)(l)." }, { "docid": "23388933", "title": "", "text": "a court may grant judgment as a matter of law only if, viewing the evidence in a light most favorable to the non-moving party and drawing every legitimate inference in that party’s favor, the court determines that the only conclusion a reasonable jury could have reached is one in favor of the moving party. Figg v. Schroeder, 312 F.3d 625, 635 (4th Cir.2002). We consider first the relevant legal principles governing this FCRA claim and then the arguments offered by BB & T. A. “Congress enacted FCRA in 1970 to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. v. Burr, — U.S. —, 127 S.Ct. 2201, 2205-06, 167 L.Ed.2d 1045 (2007) (citing 84 Stat. 1128, 15 U.S.C. § 1681). To this end, FCRA requires CRAs to follow procedures in reporting consumer credit information that both “meet[] the needs of commerce” and are “fair and equitable to the consumer.” 15 U.S.C.A. § 1681(b). In addition to the duties it imposes on CRAs, FCRA also imposes duties on “fur nishers of information.” § 1681s-2. Under § 1681s-2(a), FCRA prohibits any person from furnishing information to a CRA that the person knows is inaccurate. Additionally, any person who “regularly and in the ordinary course of business furnishes information to one or more consumer reporting agencies” must correct and update the information provided so that it is “complete and accurate.” § 1681s-2(a)(2). At issue in this appeal are the additional duties a furnisher incurs under § 1681s-2(b) if a consumer disputes the accuracy of information that the furnisher reports. If a consumer notifies a CRA that he disputes the accuracy of an item in his file, FCRA requires the CRA to notify the furnisher of the dispute. § 1681i(a)(2). Upon receipt of this notice, a furnisher must: (A) conduct an investigation with respect to the disputed information; (B) review all relevant information provided by the consumer reporting agency pursuant to section 1681i(a)(2) of this title; (C) report the results of the investigation to the consumer reporting agency; [and] (D) if the" }, { "docid": "13074476", "title": "", "text": "FCRA against the Ocwen Defendants. On motions by the Defendants, the district court granted summary judgment on each of Plaintiffs claims. It concluded Plaintiff failed to provide evidence of actual damages or willfulness to support his FCRA claim, the Ocwen Defendants are not “debt collectors” under the FDCPA, Plaintiffs FDCPA claim against CMS is barred by the statute of limitations, and the Defendants’ actions did not rise to the level of extreme and outrageous conduct required for Plaintiffs outrageous conduct claim. Plaintiff appeals the dismissal of his FCRA and FDCPA claims. Discussion “We review a district court’s decision to grant summary judgment de novo, applying the same standard as the district court.” Lundstrom v. Romero, 616 F.3d 1108, 1118 (10th Cir.2010) (internal quotation marks omitted). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the mov-ant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). I. Fair Credit Reporting Act Plaintiff alleges the Ocwen Defendants violated § 1681s-2(b) of the FCRA. Under this section, a furnisher of information who has received notice of a dispute from a CRA is required to: (1) investigate the disputed information; (2) review all relevant information provided by the CRA; (3) report the results of the investigation to the CRA; (4) report the results of the investigation to all other CRAs if the investigation reveals that the information is incomplete or inaccurate; and (5) modify, delete, or permanently block the reporting of the disputed information if it is determined to be inaccurate, incomplete, or unverifiable. Pinson v. Equifax Credit Info. Servs., Inc., 316 Fed.Appx. 744, 750 (10th Cir.2009). A consumer is entitled to actual damages for a negligent violation of the FCRA. 15 U.S.C. § 1681o(a). “Under § 1681n(a), however, the consumer need not prove actual damages if the violation is willful, but may recover punitive damages and statutory damages ranging from $100 to $1,000.” Birmingham v. Experian Info. Solutions, Inc., 633 F.3d 1006, 1009 (10th Cir.2011). The district court granted summary judgment to the Ocwen Defendants, concluding Plaintiff had failed to provide evidence of actual" }, { "docid": "23388934", "title": "", "text": "also imposes duties on “fur nishers of information.” § 1681s-2. Under § 1681s-2(a), FCRA prohibits any person from furnishing information to a CRA that the person knows is inaccurate. Additionally, any person who “regularly and in the ordinary course of business furnishes information to one or more consumer reporting agencies” must correct and update the information provided so that it is “complete and accurate.” § 1681s-2(a)(2). At issue in this appeal are the additional duties a furnisher incurs under § 1681s-2(b) if a consumer disputes the accuracy of information that the furnisher reports. If a consumer notifies a CRA that he disputes the accuracy of an item in his file, FCRA requires the CRA to notify the furnisher of the dispute. § 1681i(a)(2). Upon receipt of this notice, a furnisher must: (A) conduct an investigation with respect to the disputed information; (B) review all relevant information provided by the consumer reporting agency pursuant to section 1681i(a)(2) of this title; (C) report the results of the investigation to the consumer reporting agency; [and] (D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis.... § 1681s-2(b)(1). Thus, FCRA requires furnishers to determine whether the information that they previously reported to a CRA is “incomplete or inaccurate.” § 1681s-2(b)(1)(D) (emphasis added). In so mandating, Congress clearly intended furnishers to review reports not only for inaccuracies in the information reported but also for omissions that render the reported information misleading. Courts have held that a credit report is not accurate under FCRA if it provides information in such a manner as to create a materially misleading impression. See, e.g., Dalton v. Capital Associated Indus., Inc., 257 F.3d 409, 415 (4th Cir.2001); see also Koropoulos v. Credit Bureau, Inc., 734 F.2d 37, 40-42 (D.C.Cir.1984) (reasoning that incomplete reporting can violate FCRA when it is “misleading”); Alexander v. Moore & Assocs., Inc., 553 F.Supp. 948, 952 (D.Haw.1982). Of particular relevance here, in Dalton we addressed the" }, { "docid": "23230526", "title": "", "text": "a plaintiffs claim against a CRA fails as a matter of law. Id. at 67-68. In other words, to carry his burden, the plaintiff had to demonstrate some causal relationship between the CRA’s allegedly unreasonable reinvestigation and the failure to discover inaccuracies in his account. We hold that plaintiffs suing furnishers under § 1681s-2(b) must make the same showing, for several reasons. First, a primary component of CRAs’ reinvestigation requirement, at issue in DeAndrade, is CRAs’ obligation to promptly notify a furnisher of challenged information of the consumer’s dispute so that the furnisher can conduct an investigation pursuant to § 1681s-2(b). See 15 U.S.C. § 1681i(a)(2)(A); see also Gorman, 584 F.3d at 1156 (“[T]he CRA’s ‘reasonable reinvestigation’ consists largely of triggering the investigation by the furnish-er.”). Given the considerable overlap between a CRA’s responsibility to reinvestigate and a furnisher’s duties under § 1681s-2(b), it would be inconsistent for plaintiffs to bear a weightier burden in suits against a CRA under § 1681i(a) than in suits against furnishers under § 1681s-2(b). The text and purpose of the statute support our interpretation. Section 1681i(a) mandates that a CRA reinvestigate reported information to determine whether the disputed data is “inaccurate.” Section 1681s-2(b) imposes essentially the same obligation on furnishers of information, requiring them to determine if furnished information is “incomplete or inaccurate.” “The FCRA is intended to protect consumers against the compilation and dissemination of inaccurate credit information.” DeAndrade, 523 F.3d at 67. In light of the parallel obligations imposed on CRAs and furnishers — and the narrow purpose of the amendments to the FCRA — that same rationale supports requiring a showing of actual inaccuracy in suits against furnishers. Practical considerations also point to our conclusion. As in DeAndrade, it is “difficult to see how a plaintiff could prevail on a claim for damages” based on an unreasonable investigation of disputed data “without a showing that the disputed information ... was, in fact, inaccurate.” Id. We emphasize that, just as in suits against CRAs, a plaintiffs required showing is factual inaccuracy, rather than the existence of disputed legal questions. Id. at 68." }, { "docid": "21241259", "title": "", "text": "agencies and furnishers of information, while the FDCPA governs the conduct of debt collectors. The California FDCPA governs the conduct of debt collectors, but defines “debt collector” more broadly than the FDCPA. Based on the statutory definitions, Arrow is considered both a furnisher of information, as well as a debt collector. For the foregoing reasons, the Court finds that Nelson has produced only sufficient evidence to support her federal and California FDCPA claims; her remaining claims fail because they are not supported by the evidence, or are otherwise barred. A. Violation of Fair Credit Reporting Act The FCRA’s purpose is to ensure CRAs adopt reasonable procedures so that consumers are treated fairly and equitably. 15 U.S.C. § 1681. FCRA Section 1681s-2 imposes duties on furnishers of information to CRAs to help achieve the FCRA’s purpose. 15 U.S.C. 1681s-2. Nelson alleges that Arrow, acting as a furnisher of information, violated the FCRA by failing to reinvestigate the disputed Account after receiving notice of such dispute from Equifax. In turn, Arrow contends that Nelson’s FCRA claim fails because (1) there is no private right of action under FCRA Section 1682s-2(a), (2) Nelson bases her claim on Arrow’s conduct which was released in the settlement agreement, (3) Arrow’s statutory duty to investigate was not triggered, and (4) Nelson lacks evidence showing Arrow’s alleged non-compliance was negligent or willful. For the following reasons, Arrow prevails on this claim. 1. Private Right of Action under FCRA Nelson alleges that Arrow violated the FCRA under two provisions: Sections 1682s-2(a) and 1682s-2(b). Arrow correctly points out that Nelson’s FCRA Section 1682s-2(a) claim is barred because there is no private right of action for violations of that section of the statute. 15 U.S.C. § 1681s — 2(d). The FCRA was enacted to ensure that credit reporting agencies use reasonable procedures which ensure fairness, impartiality, accuracy, and confidentiality. See 15 U.S.C. § 1681. However, enforcement of specific sections of the Act, like Section 1681s-2(a)’s duty on furnishers to report accurate information, is limited to federal agencies and officials and state officials. 15 U.S.C. § 1681s-2(d). Thus, to the extent" }, { "docid": "19596157", "title": "", "text": "v. Burr , 551 U.S. 47, 52, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007). 15 U.S.C. § 1681s-2 outlines various responsibilities of \"furnishers of information to consumer reporting agencies.\" This section was \"designed to prevent 'furnishers of information' from spreading inaccurate consumer-credit information.\" Boggio v. USAA Fed. Sav. Bank , 696 F.3d 611, 614 (6th Cir. 2012). FCRA imposes a duty on furnishers of information to provide complete and accurate information. 15 U.S.C. § 1681s-2(a). FCRA also imposes certain duties on furnishers of information upon notice of a dispute. 15 U.S.C. § 1681s-2(b). After receiving notice of a \"dispute with regard to the completeness or accuracy of any information provided by a person to a consumer reporting agency,\" that person shall: (A) conduct an investigation with respect to the disputed information; (B) review all relevant information provided by the consumer reporting agency pursuant to section 1681i(a)(2) of this title; (C) report the results of the investigation to the consumer reporting agency; (D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis; and (E) if an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified after any reinvestigation under paragraph (1), for purposes of reporting to a consumer reporting agency only, as appropriate, based on the results of the reinvestigation promptly-- (i) modify that item of information; (ii) delete that item of information; or (iii) permanently block the reporting of that item of information. 15 U.S.C. § 1681s-2(b)(1). FCRA \"expressly creates a private right of action to enforce many of its terms.\" Boggio , 696 F.3d at 615. Pursuant to § 1681s-2(c), however, consumers are precluded \"from enforcing the requirement that furnishers, under § 1681s-2(a), initially provide complete and accurate consumer information to a CRA.\" Id . However, \"FCRA expressly creates a private right of action against a furnisher who fails to satisfy one of five duties identified in § 1681s-2(b).\" Id" }, { "docid": "22049066", "title": "", "text": "who furnished information to a CRA receives notice from the CRA that the consumer disputes the information. See § 1681i(a)(2) (requiring CRAs promptly to provide such notification containing all relevant information about the consumer’s dispute). Subsection 1681s-2(b) provides that, after receiving a notice of dispute, the furnisher shall: (A) conduct an investigation with respect to the disputed information; (B) review all relevant information provided by the [CRA] pursuant to section 1681i(a)(2) ...; (C) report the results of the investigation to the [CRA]; (D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other [CRAs] to which the person furnished the information ...; and (E) if an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified after any reinvestigation under paragraph (1) ... (i) modify ... (ii) delete[or] (iii) permanently block the reporting of that item of information [to the CRAs]. § 1681s-2(b)(l). These duties arise only after the furnisher receives notice of dispute from a CRA; notice of a dispute received directly from the consumer does not trigger furnishers’ duties under subsection (b). See id.; Nelson v. Chase Manhattan Mortgage Corp., 282 F.3d 1057, 1059-60 (9th Cir.2002). The FCRA expressly creates a private right of action for willful or negligent noncompliance with its requirements. §§ 1681n & o; see also Nelson, 282 F.3d at 1059. However, § 1681s-2 limits this private right of action to claims arising under subsection (b), the duties triggered upon notice of a dispute from a CRA. § 1681s-2(c) (“Except[for circumstances not relevant here], sections 1681n and 1681o of this title do not apply to any violation of ... subsection (a) of this section, including any regulations issued thereunder.”). Duties imposed on furnishers under subsection (a) are enforceable only by federal or state agencies. See § 1681s-2(d). Gorman alleges that MBNA violated several of the FCRA “furnisher” obligations. We hold that some of the alleged violations survive summary judgment and some do not. 2. MBNA’s “investigation” upon notice of dispute Gorman’s first allegation is that MBNA did not conduct a" } ]

[ { "docid": "22667986", "title": "", "text": "view to preventing such wrong to the citizen . . . [and] in aid of the constitutional provisions, National and state, intended to secure to the accused a speedy trial” had passed statutes limiting the time within which such trial must occur after charge or indictment. Characteristically, these statutes to which the Court referred are triggered only when a citizen is charged or accused. The statutes vary greatly in sub stance, structure, and interpretation, but a common denominator is that “[i]n no event . . . [does] the right to speedy trial arise before there is some charge or arrest, even though the prosecuting authorities had knowledge of the offense long before this.” Note, The Right to a Speedy Trial, 57 Col. L. Rev. 846, 848 (1957). No federal statute of general applicability has been enacted by Congress to enforce the speedy trial provision of the Sixth Amendment, but Federal Rule of Criminal Procedure 48 (b), which has the force of law, authorizes dismissal of an indictment, information, or complaint “[i]f there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial . . . .” The rule clearly is limited to post-arrest situations. Appellees’ position is, therefore, at odds with longstanding legislative and judicial constructions of the speedy trial provisions in both national and state constitutions. III It is apparent also that very little support for appel-lees’ position emerges from a consideration of the purposes of the Sixth Amendment’s speedy trial provision, a guarantee that this Court has termed “an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.” United States v. Ewell, 383 U. S. 116, 120 (1966); see also Klopfer v. North Carolina, 386 Ü. S. 213, 221-226 (1967); Dickey v. Florida, 398 U. S. 30, 37-38 (1970)." } ]

[ { "docid": "13265732", "title": "", "text": "policy underlying the work-product doctrine ... is adequately safeguarded by the Jencks Act,” which was incorporated into Rule 26.2) but Wallace, for whatever reason, simply chose not to use those safeguarding procedures. B. Sixth Amendment Right to a Speedy Trial Wallace was arrested by state authorities on April 26, 1999. The federal indictment was returned on March 6, 2001, and the case went to trial on October 9, 2001. Wallace contends that the nearly two-year delay between his state arrest and the return of the federal indictment violated his Sixth Amendment right to a speedy trial. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const, amend. VI. It is well settled that the Sixth Amendment speedy-trial right has no application prior to arrest or indictment. Doggett v. United States, 505 U.S. 647, 655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); United States v. MacDonald, 456 U.S. 1, 6, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). Wallace’s claim is based on the assumption that his speedy-trial right was triggered when he was arrested on April 26, 1999. But that arrest was made by state authorities on a state charge, and therefore does not start the Sixth Amendment speedy trial clock for purposes of the subsequent federal charge. United States v. Dickerson, 975 F.2d 1245, 1252 (7th Cir.1992) (“The ... period between [defendant’s] arrest by state authorities on state charges and the return of the federal indictment cannot be the basis of a Sixth Amendment claim.”). Wallace’s right to a speedy trial on the federal charge did not arise until the federal indictment issued on March 6, 2001, when the formal prosecution of the federal charge began. See Doggett, 505 U.S. at 655, 112 S.Ct. 2686. Thus, we find no violation of Wallace’s Sixth Amendment rights. It is of course true that, while not creating a Sixth Amendment issue, “delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment.” MacDonald, 456 U.S. at 7, 102 S.Ct. 1497 (citation omitted). Wallace," }, { "docid": "1053985", "title": "", "text": "RIGHT Although the speedy trial provision of the sixth amendment and the due process clause of the fifth amendment both protect individuals against unreasonable prosecutorial delay, they cover distinct stages of the pre-trial process. The Su preme Court has stated that “it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the Sixth Amendment.” United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). Thus, “[although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, see United States v. Lovasco, 431 U.S. 783, 788-89 [97 S.Ct. 2044, 2047-2048, 52 L.Ed.2d 752] (1977), or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending.” United States v. MacDonald, 456 U.S. 1, 7, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1982). Marler does not complain of any undue delay in the period between his federal arrest and indictment and his federal trial. Instead, he claims that his sixth amendment right attached at the time of his state indictment, and that the 53-month interval between that indictment (September 24, 1979) and Marler’s federal trial on charges arising from the same incident (February 21, 1984) constituted a violation of his speedy trial right. The question before us, then, is whether under these circumstances a state indictment may trigger an individual’s speedy trial right so as to force the federal government to bring him promptly to trial on any federal charges that may arise from the same course of conduct. Marler argues that the state indictment, like a federal arrest, “is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and friends.” Marion, 404 U.S. at 320, 92 S.Ct. at 463. Because “[t]hese considerations" }, { "docid": "1053984", "title": "", "text": "not initiate their own investigation of the incident until December 1981. The federal government did not request that the state’s evidence be transferred to it until August 1982, almost one year after the close of the second state trial. A federal grand jury first heard evidence in the case in July 1983 and ultimately indicted Marler for willfully violating Brown’s right not to be deprived of liberty without due process of law. The present indictment was returned on November 3, 1983, over four years after the incident occurred. On December 13, 1983, Marler moved in the district court to dismiss the federal indictment on speedy trial and due process grounds. After a hearing, the district court denied Marler’s motion. United States v. Marler, 583 F.Supp. 1456 (D.Mass.1984). After a seven-day trial before a jury, Marler was convicted on March 1, 1984. On April 4, 1984, Marler was sentenced to 15 years. Marler filed a notice of appeal, and the court stayed execution of his sentence pending resolution of this appeal. I. SIXTH AMENDMENT SPEEDY TRIAL RIGHT Although the speedy trial provision of the sixth amendment and the due process clause of the fifth amendment both protect individuals against unreasonable prosecutorial delay, they cover distinct stages of the pre-trial process. The Su preme Court has stated that “it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the Sixth Amendment.” United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). Thus, “[although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, see United States v. Lovasco, 431 U.S. 783, 788-89 [97 S.Ct. 2044, 2047-2048, 52 L.Ed.2d 752] (1977), or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending.” United States v. MacDonald, 456 U.S. 1, 7, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1982). Marler does not complain of any undue delay in the" }, { "docid": "9876020", "title": "", "text": "S.Ct. 1497, 1501-02, 71 L.Ed.2d 696 (1982). In that case, the Supreme Court said: Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, see United States v. Lovasco, 431 U.S. 783, 788-89 [97 S.Ct. 2044, 2047-48, 52 L.Ed.2d 752] (1977), or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending. 456 U.S. at 7, 102 S.Ct. at 1501. In any event, the magistrate determined that the petitioner's claim should be resolved as a due process claim and not one under the Speedy Trial Clause of the Sixth Amendment, and the petitioner has not taken exception to this procedure. . He submitted with his petition a supporting memorandum of law, which said that a federal court was \"bound by [the] presumption of correctness standard enunciated in Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), and under 28 U.S.C. Section 2254(d)(8) to overturn a State Court finding of fact when the finding is not fairly supported in the record\" (emphasis in original). . In Gouveia, the Supreme Court said: Thus, at bottom, the majority's concern is that because an inmate suspected of a crime is already in prison, the prosecution may have little incentive promptly to bring formal charges against him, and that the resulting preindictment delay may be particularly prejudicial to the inmate, given the problems inherent in investigating prison crimes, such as the transient nature of the prison population and the general reluctance of inmates to cooperate. But applicable statutes of limitations protect against the prosecution’s bringing stale criminal charges against any defendant, United. States v. Lovasco, supra, 788-89, 97 S.Ct. at 2047-48; United States v. Marion, supra, at 322, 92 S.Ct. at 464, and, beyond that protection, the Fifth Amendment requires the dismissal of an indictment, even if it is brought with the statute of limitations, if the defendant can prove that the Government's delay in bringing the indictment was a deliberate device to gain an advantage over him and that" }, { "docid": "9589232", "title": "", "text": "disclosed by the record, and the methods he contends the Government should have used to locate him to have avoided much of the sixteen month delay between his indictment and arrest. We accept the conclusion of the trial judge, as set forth below, that the Government was negligent in its efforts to locate defendant. . The Sixth Amendment guarantee of a speedy trial is inapplicable to this seven month period preceding defendant’s indictment. In United States v. Marion, 404 U.S. 307, 313-20, 92 S.Ct. 455, 459-463, 30 L.Ed.2d 468 (1971), the Supreme Court held that the “Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an ‘accused....’” Events which trigger Sixth Amendment protection are “indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge____” Id. at 320, 92 S.Ct. at 463. See United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982); United States v. Lovasco, 431 U.S. 783, 788-89, 97 S.Ct. 2044, 2048-2049, 52 L.Ed.2d 752 .rehearing denied, 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164 (1977); United States v. McManaman, 606 F.2d 919 (10th Cir.1979); United States v. Avalos, 541 F.2d 1100-08 (5th Cir.1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977). The search of his home pursuant to a search warrant, defendant’s only contact with the authorities prior to his indictment, was insufficient to trigger the Sixth Amendment’s protection. . Of course, the constitutional claim of violation of the speedy trial guarantee is assessed, with respect to time, by the lapse of time from filing of an indictment or information or arrest on the charges, until trial. Marion, supra, 404 U.S. at 320-21, 92 S.Ct. at 463-164. We examine the question here in terms of only the 16-month portion of the delay because this is the time frame in which defendant makes his argument. . In Strunk, the Supreme Court held that in view of the important policies underlying the right to a speedy trial, dismissal is the only possible remedy for violation" }, { "docid": "2929603", "title": "", "text": "limited to prejudice which interferes with the defendant’s ability to mount and present a defense. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. The government responds that Rule 48(b) does not apply to the period between arrest and indictment where the charges have been dismissed subsequent to arrest. The prompt dismissal of all charges after arrest required that the delay before indictment be tested by due process standards under guidelines established in Marion and United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), the government contends. Under those guidelines, the government argues, dismissal is not required upon a showing of the type of hardship relied upon by these defendants. Therefore, it was not error to exclude the testimony of the defendants’ wives. B. Rule 48(b) comes into play when there is unnecessary delay in presenting a charge to a grand jury “against a defendant who has been held to answer to a district court .... ” In this case we have defendants who were held to answer charges in 1980. However, the charges were not pending during the entire period between their arrest and their indictment. In fact, they were pending only from January 18 until March 21, 1980. None were pending from March 21, 1980 to April 15, 1982. This fact is significant. In United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), the Supreme Court held that the Sixth Amendment right to a speedy trial does not apply to a period between the dismissal of charges and the institution of new charges: Once charges are dismissed, the speedy trial guarantee is no longer applicable. At that point, the formerly accused is, at most, in the same position as any other subject of a criminal investigation. Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life. This is true whether or not charges have been filed and then dismissed. This was true in Manon, where the defendants had been subjected to a lengthy investigation which received considerable press" }, { "docid": "12096371", "title": "", "text": "constitutional basis for the defendant’s argument is not the sixth amendment, but the due process clause of the fifth amendment. United States v. Fuesting, 845 F.2d 664, 669 (7th Cir.1988). “Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause.” United States v. MacDonald, 456 U.S. 1, 7, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1982) (footnote omitted). Statutes of limitations are a defendant’s primary safeguard against governmental delay that results in prosecution of stale criminal charges. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971); United States v. Antonino, 830 F.2d 798, 804 (7th Cir. 1987). A defendant may demonstrate that the government violated his due process rights through preindictment delay, even if the indictment is brought within the statute of limitations, if it can be shown “(1) that the government delayed bringing the indictment in order to gain a tactical advantage; and (2) that the delay caused him actual and substantial prejudice.” Fuesting, at 669; United States v. Gouveia, 467 U.S. 180, 192, 104 S.Ct. 2292, 2299, 81 L.Ed. 2d 146 (1984); Lovasco, 431 U.S. at 789-90, 97 S.Ct. at 2048. The defendant has failed to carry his burden of showing actual and substantial prejudice. He suggests in his brief that between the time the first indictment was dismissed and the time he was reindicted (September 11,1986 to April 21,1987) he suffered anxiety and concern. At a motion hearing before trial, defense counsel stated that the defendant had suffered difficulties in finding employment, marital problems, the deprivation of his motor vehicle, and a possible lapse of memory. Under the line of Seventh Circuit cases dealing with preindictment delay, these vague allegations are clearly insufficient to establish prejudice. See Fuesting, at 669; Antonino, 830 F.2d at 804-05; United States v. Perry, 815 F.2d 1100, 1103-04 (7th Cir.1987); United States v. Jones, 808 F.2d 561, 567 (7th Cir.1986), cert. denied," }, { "docid": "5617316", "title": "", "text": "Doggett v. United States, 505 U.S. 647, 655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Moreover, the speedy trial clause does not “require the Government to discover, investigate, and accuse any person within any particular period of time.” United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); see also United States v. Loud Hawk, 474 U.S. 302, 312, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986). Because Schaffer was neither arrested for violating federal law nor officially accused of doing so prior to his indictment on February 27, 2008, the protections of the Sixth Amendment were not triggered in this case before that date. Schaffer’s claims about pre-indictment delay must therefore be resolved in the context of the Fifth Amendment. The Supreme Court recognizes that the Due Process Clause of the Fifth Amendment protects against oppressive pre-indictment delay. See, e.g., Marion, 404 U.S. at 324-25, 92 S.Ct. 455; United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). In this circuit, dismissal for pre-indictment delay “is warranted only when the defendant shows substantial prejudice to his right to a fair trial and that the delay was an intentional device by the government to gain a tactical advantage.” United States v. Greene, 737 F.2d 572, 574 (6th Cir.1984) (quoting United States v. Brown, 667 F.2d 566 (6th Cir.1982) (per curiam)). Schaffer contends that he was prejudiced because his own recollection of what occurred in 2003 had obviously faded five years later. He also asserts that the Government’s evidence failed to “include any record of conversations” he had with Arvidson or “any record of their beliefs and understandings at the time regarding the manner, means, method and content of the information they obtained....” Despite these general allegations, Schaffer points to no examples of actual prejudice. He does not contend that he was unable to assist in his own defense, nor does he suggest that witnesses were unavailable or that specific evidence had been lost or destroyed. Simply put, Schaffer falls far short of demonstrating that he was actual ly and substantially prejudiced" }, { "docid": "3160879", "title": "", "text": "move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him.” In addition to the period after indictment, the period between arrest and indictment must be considered in evaluating a Speedy Trial Clause claim. Dillingham v. United States, 423 U.S. 64 [96 S.Ct. 303, 46 L.Ed.2d 205] (1975). Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, see United States v. Lovasco, 431 U.S. 783, 788-789 [97 S.Ct. 2044, 2047-2048, 52 L.Ed.2d 752] (1977), or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending. Similarly, the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges. Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause. Id. at-, 102 S.Ct. at 1501. While we recognize that MacDonald dealt with the constitutional right to speedy trial as opposed to the statutorily created rights in the Speedy Trial Act of 1974, the case does reflect the Supreme Court’s view that not only the sixth amendment but also the Act requires that charges be pending for the delay to violate a right to speedy trial. As noted in United States v. Hillegas, 578 F.2d 453 (2d Cir. 1978), the “policy and purpose” of the Speedy Trial Act has “been to expedite the processing of pending criminal proceedings, not to supervise the exercise by a prosecutor of his investigative or prosecutorial discretion at a time when no criminal proceeding is pending before the court.” Id. at 456 (emphasis in original). The legislative history, while less than precise, does reflect an assumption by Congress that any arrested individual would also be a “charged” or “accused” individual. In the House Report’s general description of the time limits imposed by the bill the following comments were made: H.R.17409 provides that all defendants charged with criminal offenses be brought to trial within 100" }, { "docid": "22890434", "title": "", "text": "of ordinary delay as to foreclose the conclusion that the case was prosecuted with customary promptness and to raise a presumption that the delay may have been prejudicial. Doggett v. United States, — U.S. -, -, 112 S.Ct. 2686, 2690-91, 120 L.Ed.2d 520 (1992) (Doggett). Because the Sixth Amendment right to a speedy trial does not attach until the defendant has been arrested or indicted, United States v. MacDonald, 456 U.S. 1, 7, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1981), the length of the pre-indictment delay in this case is irrelevant to the issue of whether Manning has been deprived of his Sixth Amendment right to a speedy trial. See United States v. Roller, 956 F.2d 1408, 1413 (7th Cir.1992). The only delay relevant to the question of whether Manning was deprived of his Sixth Amendment right to a speedy trial is the 30 month delay between Manning’s indictment and the government’s formal extradition request. For purposes of this analysis, we assume, without deciding, that 30 months is long enough to warrant inquiry into the delay. To determine whether post-indictment delay has violated a defendant’s speedy trial rights under the Sixth Amendment, we usually consider the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Doggett, — U.S. at -, 112 S.Ct. at 2690, quoting Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Whether Manning “must show actual prejudice depends on whether it is he or the government who is responsible for the de lay.” United States v. Aguirre, 994 F.2d 1454, 1456 (9th Cir.) (Aguirre), cert. denied, — U.S. -, 114 S.Ct. 645, 126 L.Ed.2d 603 (1993). Because the district court’s finding that the government did not negligently cause the post-indictment delay was not clearly erroneous, Manning would be required to demonstrate actual prejudice to establish a violation of his Sixth Amendment right to a speedy trial. Id. We need not engage in this analysis, however, because Manning has waived his constitutional right to a speedy trial. If the delay can be attributed" }, { "docid": "5083873", "title": "", "text": "The analysis is somewhat different under the Sixth Amendment. See United States v. White, 443 F.3d 582, 588 (7th Cir.2006) (explaining that the constitutional and statutory speedy trial rights “are related but distinct, so that a violation of one may be found without a violation of the other”). The constitutional right to a speedy trial is “triggered by an arrest, indictment, or some other official accusation.” Arceo, 535 F.3d at 684. Once the right is triggered, a claimed violation is assessed by considering “whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result.” Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). The first factor — the length of the delay — is not so much a factor as it is a threshold requirement: “without a delay that is presumptively prejudicial, .we need not examine the other factors.” White, 443 F.3d at 589. Delay approaching one year is presumptively prejudicial. Id. For Loera, this first hurdle is insurmountable. He admits that the delay between the second indictment and trial— a mere two-and-a-half months — falls far short. Yet, he says we should also consider the delay associated with the first indictment. We cannot do that. “The Speedy Trial Clause applies only to an accused,” United States v. Samples, 713 F.2d 298, 301 (7th Cir.1983), so when the first indictment was dismissed, Loera was “legally and constitutionally in the same posture as though no charges had been made,” United States v. MacDonald, 456 U.S. 1, 10, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). The delay following the second indictment must be measured independently, and from that perspective it fails. And to the extent Loera would have us find a constitutional violation on the delay after the first indictment alone, the time to make that argument was then, not now. As the district court noted, even though Loera mentioned the Sixth Amendment in" }, { "docid": "3160878", "title": "", "text": "- U.S. -, 102 U.S. 1497, 71 L.Ed.2d 696 (1982), the Supreme Court held that a four year delay between dismissal of military charges for murder and a subsequent indictment did not establish a violation of the sixth amendment right to a speedy trial. The Supreme Court in MacDonald stated: In United States v. Marion, 404 U.S. 307, 313 [92 S.Ct. 455, 459, 30 L.Ed.2d 468] (1971), we held that the Speedy Trial Clause of the Sixth Amendment does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused: “On its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time. The Amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him.” In addition to the period after indictment, the period between arrest and indictment must be considered in evaluating a Speedy Trial Clause claim. Dillingham v. United States, 423 U.S. 64 [96 S.Ct. 303, 46 L.Ed.2d 205] (1975). Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, see United States v. Lovasco, 431 U.S. 783, 788-789 [97 S.Ct. 2044, 2047-2048, 52 L.Ed.2d 752] (1977), or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending. Similarly, the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges. Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause. Id. at-, 102 S.Ct. at 1501. While we recognize that MacDonald dealt with the" }, { "docid": "9876019", "title": "", "text": "that decision, which was contrary to the ruling in Automated Medical. I do not think that a decision decided adversely to a Supreme Court decision should be given any weight by us. I think we should follow Gouveia and the majority of the cases which do follow Gouveia. In any event, I am of the opinion that Gouv-eia should be our guide. If it is, Gouveia gives a second reason for reversing the decision below. I would reverse the decision of the magistrate, adopted by the district court, on both grounds. . The petitioner's assertion of a Sixth Amendment violation is extensively discussed in the magistrate’s opinion. The magistrate indicated doubt whether delay prior to the issuance of an arrest warrant and prior to an arrest triggered the Speedy Trial Clause of that amendment. He, however, seemed inclined to the view that the Clause covered the period between the issuance of the arrest warrant and the actual arrest. In my opinion, that question was settled in United States v. McDonald, 456 U.S. 1, 7-8, 102 S.Ct. 1497, 1501-02, 71 L.Ed.2d 696 (1982). In that case, the Supreme Court said: Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, see United States v. Lovasco, 431 U.S. 783, 788-89 [97 S.Ct. 2044, 2047-48, 52 L.Ed.2d 752] (1977), or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending. 456 U.S. at 7, 102 S.Ct. at 1501. In any event, the magistrate determined that the petitioner's claim should be resolved as a due process claim and not one under the Speedy Trial Clause of the Sixth Amendment, and the petitioner has not taken exception to this procedure. . He submitted with his petition a supporting memorandum of law, which said that a federal court was \"bound by [the] presumption of correctness standard enunciated in Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), and under 28 U.S.C. Section 2254(d)(8) to overturn a State Court finding of fact" }, { "docid": "22247706", "title": "", "text": "v. Lovasco, 431 U.S. 783, 792-93, 97 S.Ct. 2044, 2050, 52 L.Ed.2d 752 (1977) (rejecting in part any requirement of immediate indictment upon establishment of probable cause as impairing prosecutor’s ability to continue investigation where multiple criminal transactions or actors exist). Once it became clear that Sterling would provide substantial evidence regarding appellants’ extensive participation in the heroin distribution activities, it was not improper for the government to recharge Wallace more heavily in the 1986 indictment. B. Sixth Amendment and Due Process Claims Appellants also allege that the delay between their initial arrest in the fall of 1984 and the 1986 indictment violated the Sixth Amendment’s speedy trial guarantee. We review a defendant’s Sixth Amendment speedy trial claim de novo. United States v. Williams, 782 F.2d 1462, 1464 (9th Cir.1985). We may reject the district court’s determination of the underlying facts, however, only if it is clearly erroneous. Id. at 1468. The Sixth Amendment right to a speedy trial is intended “to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.” United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 1502, 71 L.Ed.2d 696 (1982). Of course, once Wallace’s 1984 indictment was dismissed, since she was not subject to trial, her Sixth Amendment right to a speedy trial had no application to the delay between her initial arrest and the dismissal. Her Sixth Amendment right to a speedy trial reattached upon her rearrest pursuant to the 1986 indictment, but no undue delay following the 1986 arrest is claimed. See id. 456 U.S. at 7, 102 S.Ct. at 1501 (“Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause.”) Appellants’ Sixth Amendment claim, based on the delay between the initial arrest in 1984 and the return of the 1986 indictment, is without merit because it ignores the" }, { "docid": "15975410", "title": "", "text": "those guilty of bombing churches and committing other capital offenses would be punished even 19 years after the commission of the crimes. Alabama law, as expressed through the statute of limitations in force at the time of the bombing of the Bethel Baptist Church, provides for the prosecution at issue in this case. When the statute of limitations is constitutional, the Constitution places a very heavy burden on a defendant to show that pre-indictment delay has offended due process. The statute of limitations is the principal device, created by the people of a state through their legislature, to protect against prejudice arising from a lapse of time between the commission of a crime and an indictment or arrest. United States v. Harrington, 543 F.2d 1151 (5th Cir.1976); United States v. Zane, 489 F.2d 269, 270 n. 1 (5th Cir.1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1975, 40 L.Ed.2d 310 (1974). Statutes of limitation “represent legislative assessments of relative interest of the state and the defendant in administering and receiving justice.” United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971). Limitations statutes, however, are not the only available protection against prejudice. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). The particular provisions of the Speedy Trial Clause of the Sixth Amendment are available with respect to prejudicial delay after formal indictment or information, or actual arrest. Lovasco, 431 U.S. at 788, 97 S.Ct. at 2047; Marion, 404 U.S. at 313-22, 92 S.Ct. at 459-64; cf. Fed.R.Crim.P. 48(b). However, the Speedy Trial Clause is inapplicable where, as here, the delay concerns a period of time prior to indictment, information, or arrest. Where the possibility of prejudice derives from pre-indictment delay, the defendant in a criminal case must first resort to the applicable statute of limitations. Id. at 323, 92 S.Ct. at 464. Only where the applicable statute of limitations has failed to offer relief for pre-indictment delay, are claims of actual prejudice in violation of Due Process Clause of the Fourteenth Amendment ripe for judicial consideration." }, { "docid": "5617315", "title": "", "text": "the $100,000 payment constitute overt acts in furtherance of the conspiracy. Indeed, “[c]ase law gives ample support to the proposition that payment is an integral and often final term in a conspiracy.” United States v. Fitzpatrick, 892 F.2d 162, 167 (1st Cir.1989) (quoting United States v. Hamilton, 689 F.2d 1262, 1270 (6th Cir.1982), cert. denied, 459 U.S. 1117, 103 S.Ct. 753, 74 L.Ed.2d 971 (1983)). Because the indictment was returned within five years of the last act in furtherance of the conspiracy, no statute of limitations violation occurred. D. Schaffer argues that the district court erred in failing to dismiss the indictment based upon pre-indictment delay and resulting prejudice. Pre-indictment delay and post-indictment delay present separate issues. The former is governed by the Fifth Amendment, see United States v. Rogers, 118 F.3d 466, 475-76 (6th Cir.1997), while the latter is a Sixth Amendment matter, see United States v. Graham, 128 F.3d 372, 374 (6th Cir.1997). The Sixth Amendment right to a speedy trial does not come into play until “arrest, indictment or other official accusation.” Doggett v. United States, 505 U.S. 647, 655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Moreover, the speedy trial clause does not “require the Government to discover, investigate, and accuse any person within any particular period of time.” United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); see also United States v. Loud Hawk, 474 U.S. 302, 312, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986). Because Schaffer was neither arrested for violating federal law nor officially accused of doing so prior to his indictment on February 27, 2008, the protections of the Sixth Amendment were not triggered in this case before that date. Schaffer’s claims about pre-indictment delay must therefore be resolved in the context of the Fifth Amendment. The Supreme Court recognizes that the Due Process Clause of the Fifth Amendment protects against oppressive pre-indictment delay. See, e.g., Marion, 404 U.S. at 324-25, 92 S.Ct. 455; United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). In this circuit, dismissal for pre-indictment delay" }, { "docid": "14989463", "title": "", "text": "in protecting against oppressive delay.” United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); see also Doggett, 505 U.S. at 666, 112 S.Ct. 2686 (Thomas, dissenting) (“[T]he Due Process Clause always protects defendants against fundamentally unfair treatment by the government in criminal proceedings.”). A delay in criminal proceedings that “violates those fundamental conceptions of justice which lie at the base of our civil and political institutions, and which define the community’s sense of fair play and decency,” can, depending on the circumstances, constitute a violation of the Due Process Clause. Lovasco, 431 U.S. at 790, 97 S.Ct. 2044 (internal quotation marks and citations omitted). In the same vein, another panel of our Court has recognized that “[a]n indictment brought within the time constraints of the statute [of limitations] may nevertheless violate due process where pre-indictment delay has been shown to cause ‘substantial prejudice’ to the defendant’s ability to present his defense and ‘the delay was an intentional device to gain [a] tactical advantage over the accused.’ ” United States v. Cornielle, 171 F.3d 748, 752 (2d Cir.1999) (quoting United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)). The Federal Rules of Criminal Procedure also protect criminal defendants from unreasonable delays in sentencing. Pursuant to Rule 32(b)(1), “[t]he court must impose sentence without unnecessary delay.” The directive set forth in Rule 32, taken together with the general prohibition of “oppressive delay” established by the Due Process Clause, Lovasco, 431 U.S. at 789, 97 S.Ct. 2044, protects criminal defendants from unreasonable delays between conviction and sentencing. In order to determine whether a defendant has been deprived of her due process right to a prompt sentencing, we “must consider [1] the reasons for the delay as well as [2] the prejudice to the accused.” Id. at 790, 97 S.Ct. 2044; see also Sanders, 452 F.3d at 580 (“Though the Lovasco line of cases addresses pretrial delays, we find it equally applicable to [delays in resentencing]. As in the time period before the Sixth Amendment right to a speedy trial attaches, the" }, { "docid": "6421613", "title": "", "text": "independent indictment of Frezzo. See Government’s Memorandum pp. 5-8. The court now turns to defendant's arguments. I The Speedy Trial Act and Criminal Action No. 85-462 At oral argument, both sides agree that with respect to the 1985 indictment, Judge Scirica’s December 17, 1986, dismissal of the indictment without prejudice stands as law of the case. This court today shall not review or pass on that order. Instead, defendant’s motion that the record in 85-462 be consolidated with the present action was granted at the hearing held last week. Therefore, defendant will be able to preserve his right to appeal the December 17, 1986, order. II The Speedy Trial Clause of the Sixth Amendment Defendant spends a great deal of time arguing that the Speedy Trial Clause prevents pre-indictment delay and, hence, bars the present indictment. This argument cannot stand. The Supreme Court in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) and more resently in United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982) stated that the Sixth Amendment right to a speedy trial does not arise until charges are pending or the defendant is arrested Defendant was in prison serving time for a unrelated conviction when the government obtained the indictments in 1985 and 1986 Therefore, the Sixth Amendment Speedy Trial Clause does not apply to the pre-indictment delay in the present case. Ill The Due Process Clause of the Fifth Amendment Delay prior to an arrest or an indictment may give rise to a Due Process claim under the Fifth Amendment. United States v. Lovasco, 431 U.S. 783, 788-9, 97 S.Ct. 2044, 2047-48, 52 L.Ed.2d 752 (1977); see United States v. Gouveia, 467 U.S. 180, 192, 104 S.Ct. 2292, 2299, 81 L.Ed.2d 146, 157 (1984); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); United States v. Sebetich, 776 F.2d 412, 429-30 (3d Cir.1985). The Fifth Amendment requires the dismissal of an indictment if the defendant can prove that 1) the government’s delay in bringing the indictment was a deliberate device" }, { "docid": "15975411", "title": "", "text": "404 U.S. 307, 322, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971). Limitations statutes, however, are not the only available protection against prejudice. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). The particular provisions of the Speedy Trial Clause of the Sixth Amendment are available with respect to prejudicial delay after formal indictment or information, or actual arrest. Lovasco, 431 U.S. at 788, 97 S.Ct. at 2047; Marion, 404 U.S. at 313-22, 92 S.Ct. at 459-64; cf. Fed.R.Crim.P. 48(b). However, the Speedy Trial Clause is inapplicable where, as here, the delay concerns a period of time prior to indictment, information, or arrest. Where the possibility of prejudice derives from pre-indictment delay, the defendant in a criminal case must first resort to the applicable statute of limitations. Id. at 323, 92 S.Ct. at 464. Only where the applicable statute of limitations has failed to offer relief for pre-indictment delay, are claims of actual prejudice in violation of Due Process Clause of the Fourteenth Amendment ripe for judicial consideration. The Supreme Court has declared, however, that the “Due Process Clause has a limited role to play” in protecting against the prejudice of pre-indictment delay. Lovasco, 431 U.S. at 789, 97 S.Ct. at 2048. See also Marion, 404 U.S. at 320, 92 S.Ct. at 463; United States v. Harrington, 543 F.2d 1151 (absent showing of substantial prejudice amounting to Fifth Amendment due process violation, prosecution is controlled by statute of limitations); United States v. Sample, 565 F.Supp. 1166, 1174 (E.D.Va. 1983) (statute of limitations is a legislatively determined safeguard against potential prejudice while due process is safeguard against actual prejudice). Marion, supra, and Lovasco, supra, establish the outlines of the due process analysis to be applied by courts in pre-indictment delay cases. In Marion, where defendants claimed potential prejudice from the passage of time between the commission of the crime and the indictment, the court noted: [W]e perhaps need go no further to dispose of this case, for the indictment was the first official act designating appellees as accused individuals and that event occurred within" }, { "docid": "18058322", "title": "", "text": "92, 129 S.Ct. 1283; Barker, 407 U.S. at 534-36, 92 S.Ct. 2182, and defendants may not always be eager to proceed quickly to trial and, perhaps, sentencing. As Edward Bennett Williams, one of the premier criminal defense attorneys in the latter half of the twentieth century, observed about delay from the perspective of a defendant, \"[i]t was just as good as an acquittal, but didn’t last as long.” Carrie Johnson, Showtime For Cisneros, Legal Times, Sept. 6, 1999. . A defendant’s right to a speedy trial only attaches when he or she \"is indicted, arrested, or otherwise officially accused.” United States v. MacDonald, 456 U.S. 1, 6, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982); see also United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). . The relative importance placed on each of the factors by the Supreme Court has varied over time. For example, in MacDonald, Chief Justice Burger, writing for the Court, explained: The Sixth Amendment right to a speedy trial is ... not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. 456 U.S. at 8, 102 S.Ct. 1497. Ten years later, however, Justice Souter, then writing for the Court, expressed quite a different view. He emphasized that \"the possibility that the accused's defense will be impaired by dimming memories and loss of exculpatory evidence ... [is] the most serious [of the forms of prejudice] because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Doggett v. United States, 505 U.S. 647, 654, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (internal quotation marks, citations, and brackets omitted); see also id. at 662, 112" } ]

[ { "docid": "22612258", "title": "", "text": "274 U. S. 380, 382; Stromberg v. California, ante, p. 359. In maintaining this guaranty, the authority of the State to enact laws to promote the health, safety, morals and general welfare of its people is necessarily admitted. The limits of this sovereign power must always be determined with appropriate regard to the particular subject of its exercise. Thus, while recognizing the broad discretion of the legislature in fixing rates to be charged by those ündertaking a public service, this Court has decided that the owner cannot constitutionally be deprived of his right to a fair return, because that is deemed to be of the essence of ownership. Railroad Commission Cases, 116 U. S. 307, 331; Northern Pacific Ry. Co. v. North Dakota, 236 U. S. 585, 596. So, while liberty of contract is not an absolute right, and the wide field of activity in the making of contracts is subject to legislative supervision (Frisbie v. United States, 157 U. S. 161, 165), this Court has held that the power of the State stops short of interference with what are deemed to be certain indispensable requirements of the liberty-assured, notably with respect to the fixing of prices and wages. Tyson Bros. v. Banton, 273 U. S. 418; Ribnik v. McBride, 277 U. S. 350; Adkins v. Children's Hospital, 261 U. S. 525, 560, 561. Liberty of speech, and of the press, is also not an absolute right, and the State may punish its abuse. Whitney v. California,, supra,; Stromberg v. California, supra. Liberty, in each of its phases, has its history and connotation and, in the present instance, the inquiry is as to the historic conception of the liberty of the press and whether the statute under review violates the essential attributes of that liberty. The appellee insists that the questions of the application of the statute to appellant’s periodical, and of the construction of the judgment of the trial court, are not presented for review; that appellant’s sole attack was upon the constitutionality of the statute, however it might be applied. The appellee contends that no question either of" } ]

[ { "docid": "23079262", "title": "", "text": "of the oral arguments and briefs of the respective parties and also of briefs submitted on behalf of States and others as amici curiae. In the. Arizona case the attorney general sought to distinguish the District of Columbia Act from the legislation then before us and insisted that the latter was a valid exertion of the police power of the State. Counsel for the California commission submitted a brief amicus curiae in which he elaborately argued that our decision in the Adkins case was erroneous and ought to be overruled. In the Arkansas case the state officers, appellants there, by painstaking and thorough brief presented arguments in favor of the same contention. But this court, after thoughtful attention to all that was suggested against that decision, adhered to it as sound. And in •each case, being clearly of opinion that no discussion was required to show that, having regard to the principles applied in the Adkins case, the state legislation fixing wages for women was repugnant to the due process clause of the Fourteenth Amendment, we so held and upon the authority of that case affirmed per curiam the decree enjoining its enforcement. It is equally plain that the judgment in the case now before us must also be Affirmed. Briefs of amici curiae in support of the application were filed by the City of New York and the State of Illinois. Briefs on the merits supporting the New York Act, were filed by the State of Ohio, and by the States of Connecticut, Illinois, Massachusetts, New Hampshire, New Jersey and Rhode Island. Briefs for affirmance were filed by thé New York State Hotel Association, National Woman’s Party, National Association of Women Lawyers, et al. Omitting the words in brackets, the' following is the factual background in the first section of the Act before us. Adding the words in brackets and omitting those in italics, there is indicated the background in the bill that was not approved. “The employment of [men and] women and minors in trade and industry in the state of New York at wages unreasonably low and" }, { "docid": "22641518", "title": "", "text": "of such a recommendation it became the duty of the Commission to issue an obligatory order fixing minimum wages. Any such order might be reopened and the question reconsidered with the aid of the former conference or a new one. Special licenses were authorized for the employment of women who were “physically defective or crippled by age or otherwise,” and also for apprentices, at less than the prescribed minimum wage. By a later Act the Industrial Welfare Commission was abolished and its duties were assigned to the Industrial Welfare Committee consisting of the Director of Labor and Industries, the Supervisor of Industrial Insurance, the Supervisor of Industrial Relations, the Industrial Statistician and the Supervisor of Women in Industry. Laws of 1921 (Washington) c. 7; Remington’s Rev. Stat. (1932), §§ 10840, 10893. The appellant conducts a hotel. The appellee Elsie Parrish was employed as a chambermaid and (with her husband) brought this suit to recover the difference between the wages paid her and the minimum wage fixed pursuant to the state law. The minimum wage was $14.50 per week of 48 hours. The appellant challenged the act as repugnant to the due process clause of the Fourteenth Amendment of the Constitution of the United States. The Supreme Court of the State, reversing the trial court, sustained the statute and directed judgment for the plaintiffs. Parrish v. West Coast Hotel Co., 185 Wash. 581; 55 P. (2d) 1083. The case is here on appeal. The appellant relies upon the decision of this Court in Adkins v. Children’s Hospital, 261 U. S. 525, which held invalid the District of Columbia Minimum Wage Act, which was attacked under the due process clause of the Fifth Amendment. On the argument at bar, counsel for the appellees attempted to distinguish the Adkins case upon the ground that the appellee was employed in a hotel and that the business of an innkeeper was affected with a public interest. That effort at distinction is obviously futile, as it appears that in one of the cases ruled by the Adkins opinion the employee was a woman employed as an" }, { "docid": "22641524", "title": "", "text": "Upon appeal the Court of Appeals of the District first affirmed that ruling but on rehearing reversed it and the case came before this Court in 1923. The judgment of the Court of Appeals holding the Act invalid was affirmed, but with Chief Justice Taft, Mr. Justice Holmes and Mr. Justice Sanford dissenting, and Mr. Justice Brandéis taking no part. The dissenting opinions took the ground that the decision was at variance with the principles which this Court had frequently announced and applied. In 1925 and 1927, the similar minimum wage statutes of Arizona and Arkansas were held invalid upon the authority of the Adkins case. The Justices who had! dissented in that case bowed to the ruling and Mr. Justice Brandeis dissented. Murphy v. Sardell, 269 U. S. 530; Donham v. West-Nelson Co., 273 U. S. 657. The question did not come before us again until the last . term in the Morehead case, as already noted. In that case, briefs supporting the New York statute were submitted by the States of Ohio, Connecticut, Illinois, Massachusetts, New Hampshire, New Jersey and Rhode Island. 298 U. S., p. 604, note. Throughout this entire period the Washington statute now under consideration has been in force. The principle which must control our decision is not in doubt. The constitutional provision invoked is the due process clause of the Fourteenth Amendment governing the States, as the due process clause invoked in the Adkins case governed Congress. In each case the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. \\ What is this freedom? The Constitution does 'not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the" }, { "docid": "22729936", "title": "", "text": "the law afforded insufficient protection to the inventor, the remedy lay within the scope of legislative (that is to say, Congressional) action. And in a concurring opinion (p. 28), it was said, “If the rule so declared is believed to be harmful in its operation, the remedy may be found, as it has been sought, through application to the Congress . . .” The words “as it has been sought” quite evidently referred to the bills of which we have just spoken, since they had theretofore been introduced and made the subject of the hearings. See, also Bauer & Cie v. O’Donnell, 229 U. S. 1, 12. While these observations of the court cannot, of course, be regarded as decisive of the question, they plainly imply that the court at the time foresaw no valid constitutional objection to such legislation, for it cannot be supposed that the court would suggest a legislative remedy the validity of which might seem open to doubt. In the light of the foregoing brief resume of the question with respect to the standardization of selling prices of identified goods in the absence of statutory authority, we proceed to a consideration of the specific objections to the constitutionality of the act here under review. First. In respect of the due process of law clause, it is contended that the statute is a price-fixing law, which has the effect of denying to the owner of property the right to determine for himself the price at which he will sell. Appellants invoke the well-settled general principle that the right of the owner of property to fix the price at which he will sell it is an inherent attribute of the property itself, and as such is within the protection of the Fifth and Fourteenth Amendments. Tyson & Brother v. Banton, 273 U. S. 418, 429; Wolff Co. v. Industrial Court, 262 U. S. 522, 537; Ribnik v. McBride, 277 U. S. 350; Williams v. Standard Oil Co., 278 U. S. 235; New State Ice Co. v. Liebmann, 285 U. S. 262. These cases hold that, with certain exceptions," }, { "docid": "22208209", "title": "", "text": "Mr. Justice Douglas delivered the opinion of the Court. In reliance upon Bibnik v. McBride, 277 U. S. 350, the Supreme Court of Nebraska held, one judge dissenting, that a statute of that state .fixing the maximum compensation which a private employment agency might collect from an applicant for employment , was unconstitu tional under the due process clause of the Fourteenth Amendment. 138 Neb. 574, 293 N. W. 393. The case is here on a petition for certiorari which we granted be cause of the importance of the constitutional question which was raised. The action is for a peremptory writ of mandamus ordering petitioner, Secretary of Labor of Nebraska, to issue a license to the relator to operate a private employment agency for. the year commencing May 1, 1940. The license was withheld because of relator’s refusal to limit its maximum compensation, as provided by the statute, to ten per cent of the first month’s salary or wages of the person for whom employment was'obtained. The petition in mandamus challenged the constitutionality of those provisions of the act. The answer sought to sustain them by alleging that the business of a private employment agency is “vitally affected with a public interest” and subject to such regulation under'the police power of the state. The relator’s motion for judgment on the pleadings was sustained and it was ordered that a peremptory writ of mandamus should issue. We disagree with the Supreme Court of Nebraska. The statutory provisions in question do not violate the due process clause of the Fourteenth Amendment. The drift away from Ribnik v. McBride, supra, has been so great that it can no longer be deemed a controlling authority. It was decided in 1928. In the fol-lpwing year this Court held that Tennessee had no power to fix prices at which gasoline might be sold in the state. Williams v. Standard Oil Co., 278 U. S. 235. Save for that decision and Morehead v. Tipaldo, 298 U. S. 587, holding unconstitutional a New York statute authorizing the fixing of women’s wages, the subsequent cases in this Court haye" }, { "docid": "23079274", "title": "", "text": "Act of Congress in the Adkins case,-the state court is not construing the state statute. It is passing upon the effect of the difference between the two acts from the standpoint of the Federal Constitution. It is putting aside an admitted difference as -not controlling. It is holding, as the state court says, that “Forcing the payment of wages at a reasonable value does not make inapplicable the principle and ruling of the Adkins case.” That, it seems to me, is clearly a federal and not a state question, and I pass to its consideration. Third.—The constitutional validity of a minimum wage statute like the New York act has not heretofore been passed upon by this Court. ' As I have said, the required correspondence of the prescribed “fair wage” to •the reasonable value of the service which the employee performs stands.out.as an essential feature of the statutory plan. The statute for the District of Columbia which was before us in the Adkins case did not have thafeature. That statute provided for a minimum wage ad,equate “to supply the necessary cost of living to women workers” and “to maintain them in health and to protect their morals.” 40 Stat. 963. The standard thus set up did not take account of the reasonable value of the service rendered. As this Court said, it compelled the employer “to pay at least the sum fixed in any event, because the employee needs it, but requires no service of equivalent value from the emplqyee.” In the cases of Murphy v. Sardell, 269 U. S. 530, and Donham v. West-Nelson Co., 273 U. S. 657, the statutes of Arizona and Arkansas, respectively, were of a similar character, and both these cases were decided upon the authority of the Adkins case. New York and other States have been careful to adopt a different and improved standard, in order to meet the objection aimed at the earlier statutes, by requiring a fair equivalence of wage and service. That the difference is a material one, I think is shown by the opinion in the Adkins case. That opinion" }, { "docid": "15889066", "title": "", "text": "(1914); Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383 (Mass.1876); Withey v. Bloem, 163 Mich. 419, 128 N.W. 913 (1910); Wenham v. State, 65 Neb. 394, 91 N.W. 421 (1902); Stettler v. O’Hara, 69 Or. 519, 139 P. 743 (1914) (en banc), aff'd, Simpson v. O’Hara, 243 U.S. 629, 37 S.Ct. 475, 61 L.Ed. 937 (1917); State v. Muller, 48 Or. 252, 85 P. 855 (1906), aff'd, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551 (1908); State v. Somerville, 67 Wash. 638, 122 P. 324 (1912); State v. Buchanan, 29 Wash. 602, 70 P. 52 (Wash.1902). . See also, e.g., Radice, 264 U.S. at 293, 44 S.Ct. 325 (New York law prohibiting women from working in restaurants at night); Wenham, 91 N.W. at 422 (Nebraska statute); see also Eliot A. Landau & Kermit L. Dunahoo, Sex Discrimination in Employment: A Survey of State and Federal Remedies, 20 Drake L.Rev. 417, 448 (1971) (hereinafter “Sex Discrimination \") (in 1969, eighteen states had night hour laws applicable to women only). . See, e.g., Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228 (5th Cir.1969) (Georgia statute); Richards v. Griffith Rubber Mills, 300 F.Supp. 338 (D.Ore.1969); Rosenfeld, 293 F.Supp. at 1224 (California statute); see also Sex Discrimination 450 (10 states had such laws in 1969). . See, e.g., Burns v. Rohr Corp., 346 F.Supp. 994 (S.D.Cal.1972); see also Sex Discrimination 447 (In 1969, twenty-two states required that employers grant women lunch breaks, and thirteen states required that employers grant women rest breaks; these laws did not apply to male employees.). . See also, e.g., West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937) (Washington statute); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 56 S.Ct. 918, 80 L.Ed. 1347 (1936); Topeka Laundry Co. v. Court of Industrial Relations, 119 Kan. 12, 237 P. 1041 (1925); Stevenson v. St. Clair, 161 Minn. 444, 201 N.W. 629 (1925); Stettler, 139 P. at 749 (Oregon statute). . In 1969 ten states still had minimum wage laws applicable to women only. Sex Discrimination 449. ." }, { "docid": "23079260", "title": "", "text": "employers, it would be fanciful to suppose that the regulation of women’s wages would be useful to prevent or lessen the evils listed in the first section of the Act. Men in need of work are as likely as women to accept the low wages offered by unscrupulous em-' ployers. Men in greater number than women support themselves and dependents and because of need will work for whatever wages they can get and that without regard to the value of the service and even though the pay is less than minima prescribed in accordance with this Act. It is plain that, under circumstances such as those por trayéd in the “Factual background,” prescribing of minimum wages for women alone would unreasonably restrain them in competition with men and tend arbitrarily to deprive them of emplbyment and a fair chance to find. work. This court, on the authority of the Adkins case and with the acquiescence of all the justices who dissented from the decision, held repugnant to the diie process clause' of the Fourteenth Amendment statutes of Arizona and Arkansas, respectively, fixing minimum wages for women. Murphy v. Sardell, 269 U. S. 530. Donham v. West-Nelson Mfg. Co., 273 U. S. 657. We have adhered to the principle there applied and cited it as a guide in other,cases. Meyer v. Nebraska, 262 U. S. 390, 399. Wolff Packing Co. v. Industrial Court, 262 U. S. 522, 534. Ribnik v. McBride, 277 U. S. 350, 356. See Near v. Minnesota, 283 U. S. 697, 707-708. States having similar enactments have construed it to prevent the fixing of wages for adult women. Topeka Laundry Co. v. Court of In dustrial Relations, 119 Kan. 12; 237 Pac. 1041. Stevenson v. St Clair, 161 Minn. 444; 201 N. W. 629. See-Folding Furniture Works v. Industrial Commission, 300 Fed. 991. People v. Successors of Laurnaga & Co., 32 P. R. 766. The New York court’s decision conforms to ours in the Adkins case, and the later rulings that we have made on the authority of that case. That decision was deliberately made upon careful consideration" }, { "docid": "22208212", "title": "", "text": "525, was overruled and a statute of'Washington which authorized the fixing of minimum wages for women and minors was sustained. West Coast Hotel Co. v. Parrish, 300 U. S. 379. In the same year, Townsend v. Yeomans, 301 U. S. 441, upheld a Georgia statute fixing maximum warehouse charges for the handling and selling of leaf tobacco.. Cf. Mulford v. Smith, 307 U. S. 38; Currin v. Wallace, 306 U. S. 1. The power of Congress under the commerce clause to authorize the fixing of minimum prices for milk was upheld in United States v. Rock Royal Co-operative, 307 U. S. 533, decided in 1939. The next year the price-fixing provisions of the Bituminous Coal Act of 1937 were sustained. Sunshine Coal Co. v. Adkins, 310 U. S. 381. And 'at this term we upheld the minimum wage and maximum hour provisions of the Fair Labor Standards Act of 1938. United States v. Darby, 312 U. S. 100. These cases represent more than scattered examples of constitutionally permissible price-fixing schemes. They represent in large measure a basic departure from the philosophy and approach of the majority in the Ribnik case. The standard there Employed, following that used in Tyson & Brother v. Banton, 273 U. S. 418, 430 et seq., was that the constitutional validity of price-fixing legislation, at least in absence of a so-called emergency, was dependent on whether or not the business in question was “affected with a.public interest.” Cf. Brazee v. Michigan, 241 U. S. 340. It was said to be so affected if it had been “devoted to the public .use” and if “an interest in effect” had been granted “to the public in that use.” Ribnik v. McBride, supra, p. 355. That test, labelled by Mr. Justice Holmes in his dissent in the Tyson case (273 U. S. at p. 446) as “little more than a fiction,” was discarded in Nebbia v. New York, supra, pp. 531-539. It was there stated that such criteria “are not susceptible of definition and form an unsatisfactory test of the constitutionality of legislation directed at business practices or prices,”" }, { "docid": "23079247", "title": "", "text": "It is a basic misconception. From it flows the erroneous conclusion of the Court of Appeals that there exists no material difference between the two statutes . . . Those.two factors do not enter into the determination of the minimum ‘fair wage’ as in the statute defined, nor as determined in this case. The only basis for evaluating and arriving at the ‘fair minimum wage” is the fair value of the services rendered.” There is no blinking the fact that the state court construed the prescribed standard to include cost of living or that petitioner here refuses to accept that construction. Petitioner’s contention that the Court of Appeals misconstrued the Act cannot be entertained. This court is without power to put a different construction upon the state enactment from that adopted by the highest court of the State. We are not at liberty to consider petitioner’s argument based on the construction repudiated by that court. The meaning of the statute as fixed by its decision must be accepted here as if the meaning had been specifically expressed in the enactment. Knights of Pythias v. Meyer, 265 U. S. 30, 32. Exclusive authority to enact carries with it final authority to say what the measure means. Jones v. Prairie Oil Co., 273 U. S. 195, 200. The standard of “minimum fair wage rates” for women workers to be prescribed must be considered as if both elements—value of service and living wage—were embodied in the statutory definition itself. International Harvester Co. v. Kentucky, 234 U. S. 216, 220. As our construction of an Act of Congress must be deemed by state courts to be the law of the United States, so this New York Act as construed by her court of last resort, must here be taken to express the intention and purpose of her lawmakers. Green v. Neal’s Lessee, 6 Pet. 291, 295-298. The state court rightly held that the Adkins case controls this one and requires that relator be discharged upon the ground that the legislation under which he was indicted and imprisoned is repugnant to the due process clause" }, { "docid": "23079248", "title": "", "text": "specifically expressed in the enactment. Knights of Pythias v. Meyer, 265 U. S. 30, 32. Exclusive authority to enact carries with it final authority to say what the measure means. Jones v. Prairie Oil Co., 273 U. S. 195, 200. The standard of “minimum fair wage rates” for women workers to be prescribed must be considered as if both elements—value of service and living wage—were embodied in the statutory definition itself. International Harvester Co. v. Kentucky, 234 U. S. 216, 220. As our construction of an Act of Congress must be deemed by state courts to be the law of the United States, so this New York Act as construed by her court of last resort, must here be taken to express the intention and purpose of her lawmakers. Green v. Neal’s Lessee, 6 Pet. 291, 295-298. The state court rightly held that the Adkins case controls this one and requires that relator be discharged upon the ground that the legislation under which he was indicted and imprisoned is repugnant to the due process clause of the Fourteenth Amendment; The general statement in the New York Act of the fields of labor it includes, taken in connection with the work not covered, indicates legislative intention to reach nearly all private employers of women. The Act . does not extend to men. It does extend to boys and girls under the age of 21 years but there is here involved no question as to its validity in respect of wages to be prescribed for them. Relator’s petition for the writ shows that the charge against him is that as manager of a laundry he “disobeyed a mandatory order prescribing certain minimum wages for certain adult women employees of the said laundry.” The rights of. no other class of workers are here involved. Upon the face of the act the question arises whether the State may impose upon the employers state-made minimum wage rates for all competent experienced women workers whom they may have in their service. That question involves another one. It is:' Whether the State has power similarly to.subject to" }, { "docid": "22358130", "title": "", "text": "See also Haines, The Revival of Natural Law Concepts (1930) 143-165; Fairman, Mr. Justice Miller and the Supreme Court (1939) c. VIII. See eases collected pp. 78-79 supra. Other constitutional rights left unprotected from state violation are, for example, right to counsel, Betts v. Brady, 316 U. S. 455; privilege against self-incrimination, Feldman v. United States, 322 U. S. 487, 490. Examples of regulatory legislation invalidated are: state ten-hour law for bakery employees, Lochner v. New York, 198 U. S. 45; cf. Muller v. Oregon, 208 U. S. 412; District of Columbia minimum wage for women, Adkins v. Children’s Hospital, 261 U. S. 525; Morehead v. New York, 298 U. S. 587; but cf. West Coast Hotel Co. v. Parrish, 300 U. S. 379; state law making it illegal to discharge employee for membership in a union, Coppage v. Kansas, 236 U. S. 1; cf. Adair v. United States, 208 U. S. 161; state law fixing price of gasoline, Williams v. Standard Oil Co., 278 U. S. 235; state taxation of bonds, Baldwin v. Missouri, 281 U. S. 586; state law limiting amusement ticket brokerage, Ribnik v. McBride, 277 U. S. 350; law fixing size of loaves of bread to prevent fraud on public, Jay Burns Baking Co. v. Bryan, 264 U. S. 504; cf. Schmidinger v. Chicago, 226 U. S. 578. See particularly dissents in cases cited notes 11 and 12, supra. Actually it appears that the practice of the Court of Star Chamber of compelling an accused to testify under oath in Lilburn’s trial, 3 Howell’s State Trials 1315; 4 id., 1269, 1280, 1292, 1342, had helped bring to a head the popular opposition which brought about the demise of that engine of tyranny. 16 Car. I, cc. 10, 11. See 8 Wigmore, Evidence (1940) pp. 292, 298; Pittman, The Colonial and Constitutional History of the Privilege Against Self-incrimination, 21 Va. L. Rev. 763, 774 (1935). Moreover, it has been pointed out that seven American state constitutions guaranteed a privilege against self-incrimination prior to 1789. Pittman, supra, 765; Md. Const. (1776), 1 Poore Constitutions (1878) 818; Mass. Const." }, { "docid": "23079261", "title": "", "text": "statutes of Arizona and Arkansas, respectively, fixing minimum wages for women. Murphy v. Sardell, 269 U. S. 530. Donham v. West-Nelson Mfg. Co., 273 U. S. 657. We have adhered to the principle there applied and cited it as a guide in other,cases. Meyer v. Nebraska, 262 U. S. 390, 399. Wolff Packing Co. v. Industrial Court, 262 U. S. 522, 534. Ribnik v. McBride, 277 U. S. 350, 356. See Near v. Minnesota, 283 U. S. 697, 707-708. States having similar enactments have construed it to prevent the fixing of wages for adult women. Topeka Laundry Co. v. Court of In dustrial Relations, 119 Kan. 12; 237 Pac. 1041. Stevenson v. St Clair, 161 Minn. 444; 201 N. W. 629. See-Folding Furniture Works v. Industrial Commission, 300 Fed. 991. People v. Successors of Laurnaga & Co., 32 P. R. 766. The New York court’s decision conforms to ours in the Adkins case, and the later rulings that we have made on the authority of that case. That decision was deliberately made upon careful consideration of the oral arguments and briefs of the respective parties and also of briefs submitted on behalf of States and others as amici curiae. In the. Arizona case the attorney general sought to distinguish the District of Columbia Act from the legislation then before us and insisted that the latter was a valid exertion of the police power of the State. Counsel for the California commission submitted a brief amicus curiae in which he elaborately argued that our decision in the Adkins case was erroneous and ought to be overruled. In the Arkansas case the state officers, appellants there, by painstaking and thorough brief presented arguments in favor of the same contention. But this court, after thoughtful attention to all that was suggested against that decision, adhered to it as sound. And in •each case, being clearly of opinion that no discussion was required to show that, having regard to the principles applied in the Adkins case, the state legislation fixing wages for women was repugnant to the due process clause of the Fourteenth Amendment," }, { "docid": "23079259", "title": "", "text": "Act now before us. The other was vetoed and did not~T5ecome law. They contained the same definitions of oppressive wage and fair wage and in general provided the same machinery and procedure culminating in fixing minimum wages by directory orders. The one vetoed was for an emergency; it extended to men as well as to women employees; it did not provide for the enforcement of wages by mandatory orders. It is significant that their “factual backgrounds” are much alike. They are indicated in the margin. These legislative declarations, in form of findings or recitals of fact, serve well to illustrate why any measure that deprives employers and adult women of freedom to agree upon wages, leaving employers and men employees free so to do, is necessarily arbitrary.. Much, if not all, that in them is said in justification of the regulations that the Act imposes in respect, of women’s wages applies with equal force in support of the same regulation of men’s, wages. While men are left free to fix their wages by agreement with employers, it would be fanciful to suppose that the regulation of women’s wages would be useful to prevent or lessen the evils listed in the first section of the Act. Men in need of work are as likely as women to accept the low wages offered by unscrupulous em-' ployers. Men in greater number than women support themselves and dependents and because of need will work for whatever wages they can get and that without regard to the value of the service and even though the pay is less than minima prescribed in accordance with this Act. It is plain that, under circumstances such as those por trayéd in the “Factual background,” prescribing of minimum wages for women alone would unreasonably restrain them in competition with men and tend arbitrarily to deprive them of emplbyment and a fair chance to find. work. This court, on the authority of the Adkins case and with the acquiescence of all the justices who dissented from the decision, held repugnant to the diie process clause' of the Fourteenth Amendment" }, { "docid": "22291893", "title": "", "text": "about one’s affairs is a part' of the liberty of the individual protected by this clause, [of the Fourteenth Amendment] is settled by the decisions' of this court and is no longer open to question.” Adkins v. Children’s Hospital, 261 U. S. 525, 545, 546. Adair v. United States, 208 U. S. 161, 174, 175; Coppage v. Kansas, 236 U. S. 1, 14; Wilson v. New, 243 U. S. 332; Adams v. Tanner, 244 U. S. 590; Truax v. Corrigan, 257 U. S. 312, 338; Meyer v. Nebraska, 262 U. S. 390; Wolff Co. v. Industrial Court, 262 U. S. 522; Tyson & Bro. v. Banton, supra; Ribnik v. McBride, 277 U. S. 350; Liggett Co. v. Baldridge, 278 U. S. 105, 111. Also it must be accepted as settled that the right to regulate a business does not necessarily imply powér to fix the scale for services therein, or to trespass on the duties of private management. Adams v. Tanner, supra; Truax v. Corrigan, supra; Tyson & Bro. v. Banton, supra; Southwestern Bell Tel. Co. v. Public Service Commission, 262 U. S. 276, 289; Wolff Co. v. Industrial Courts supra. Even if it be admitted that the power of the legislature to.establish reasonable rates for insurance necessarily presupposes existence of the right to command or inhibit what is essential to the accomplishment of that end, certainly this implied right extends to nothing which does not clearly appear to be necessary for such purpose. The statute under review does not prescribe a schedule of rates or point out the basis for determination of reasonable rates; it leaves with each company the primary right and duty of deciding upon rates to be demanded. But it inhibits payment to any agent, irrespective of the worth of his services and without regard to any contract with him, of anything in excess of what may be actually paid to another agent. As construed, it declares that the smallest compensation voluntarily paid to any agent shall thereby become reasonable for every other agent. And it permits an agent who has been paid according to his" }, { "docid": "22291892", "title": "", "text": "rate charged for policies; but this is true of the wages of office boys, printers, bookkeepers, actuaries, officers; the price paid for pens, ink, or'other supplies — indeed whatever expense may be inpurred. Broadly speaking, the funds of an insurance company come from premiums collected; and necessarily all'dis-. bursements are made therefrom and, therefore, in some sense may be said to affect the necessary rate of charge.. The State may not permit a foreign Insurance Company to do business within her limits upon condition .that it shall submit to deprivation of rights guaranteed by the Constitution. Western Union Tel. Co. v. Kansas, 216 U. S. 1; Hanover Ins. Co. v. Harding, 272 U. S. 494, 508. This Court has steadfastly upheld the,general right to' enter into private contract and. has definitely disapproved attempts to fix prices by legislative fiat. “Freedom of contract is, nevertheless, the general rule and restraint the exception; and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances.” “That the right to contract about one’s affairs is a part' of the liberty of the individual protected by this clause, [of the Fourteenth Amendment] is settled by the decisions' of this court and is no longer open to question.” Adkins v. Children’s Hospital, 261 U. S. 525, 545, 546. Adair v. United States, 208 U. S. 161, 174, 175; Coppage v. Kansas, 236 U. S. 1, 14; Wilson v. New, 243 U. S. 332; Adams v. Tanner, 244 U. S. 590; Truax v. Corrigan, 257 U. S. 312, 338; Meyer v. Nebraska, 262 U. S. 390; Wolff Co. v. Industrial Court, 262 U. S. 522; Tyson & Bro. v. Banton, supra; Ribnik v. McBride, 277 U. S. 350; Liggett Co. v. Baldridge, 278 U. S. 105, 111. Also it must be accepted as settled that the right to regulate a business does not necessarily imply powér to fix the scale for services therein, or to trespass on the duties of private management. Adams v. Tanner, supra; Truax v. Corrigan, supra; Tyson & Bro. v. Banton, supra; Southwestern Bell Tel." }, { "docid": "22208210", "title": "", "text": "provisions of the act. The answer sought to sustain them by alleging that the business of a private employment agency is “vitally affected with a public interest” and subject to such regulation under'the police power of the state. The relator’s motion for judgment on the pleadings was sustained and it was ordered that a peremptory writ of mandamus should issue. We disagree with the Supreme Court of Nebraska. The statutory provisions in question do not violate the due process clause of the Fourteenth Amendment. The drift away from Ribnik v. McBride, supra, has been so great that it can no longer be deemed a controlling authority. It was decided in 1928. In the fol-lpwing year this Court held that Tennessee had no power to fix prices at which gasoline might be sold in the state. Williams v. Standard Oil Co., 278 U. S. 235. Save for that decision and Morehead v. Tipaldo, 298 U. S. 587, holding unconstitutional a New York statute authorizing the fixing of women’s wages, the subsequent cases in this Court haye given increasingly wider scope to the price-fixing powers of the states and of Congress. Tagg Bros. v. United States, 280 U. S. 420, decidedv,in 1930, upheld the power of the Secretary of Agriculture under the Packers and Stockyards Act to determine the just and reasonable charges of persons engaged in the business of buying and selling in interstate commerce livestock at a stockyard on a commission basis. In 1931 a New Jersey statute limiting commissions of agents- of fire insurance companies was sustained by O’Gorman & Young v. Hartford Fire Ins. Co., 282 U. S. 251. A New York statute authorizing the fixing of minimum and maximum retail prices for milk was upheld in 1934. Nebbia v. New York, 291 U. S. 502. And see Hegeman Farms Corp. v. Baldwin, 293 U. S. 163; Borden’s Farm Products Co. v. Ten Eyck, 297 U. S. 251. Cf. Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511; Mayflower Farms v. Ten Eyck, 297 U. S. 266. In 1937 Adkins v. Children’s Hospital, 261 U. S." }, { "docid": "22641523", "title": "", "text": "of the litigation of this question may be briefly stated. The minimum wage statute of Washington was enacted over twenty-three years ago. Prior to the decision in the instant case it had twice been held valid by the Supreme Court of the State. Larsen v. Rice, 100 Wash. 642; 171 Pac. 1037; Spokane Hotel Co. v. Younger, 113 Wash. 359; 194 Pac. 595. The Washington statute is essentially the same as that enacted in Oregon in the same year. Laws of 1913 (Oregon) chap. 62. ' The validity of the latter act was sustained by the Supreme Court of Oregon in Stettler v. O’Hara, 69 Ore. 519; 139 Pac. 743, and Simpson v. O’Hara, 70 Ore. 261; 141 Pac. 158. These cases, after reargument, were affirmed here by an equally divided court, in 1917. 243 U. S. 629. The law of Oregon thus continued in effect. The District of Columbia Minimum Wage Law (40 Stat. 960) was enacted in 1918. The statute was sustained by the Supreme Court of the District in the Adkins case. Upon appeal the Court of Appeals of the District first affirmed that ruling but on rehearing reversed it and the case came before this Court in 1923. The judgment of the Court of Appeals holding the Act invalid was affirmed, but with Chief Justice Taft, Mr. Justice Holmes and Mr. Justice Sanford dissenting, and Mr. Justice Brandéis taking no part. The dissenting opinions took the ground that the decision was at variance with the principles which this Court had frequently announced and applied. In 1925 and 1927, the similar minimum wage statutes of Arizona and Arkansas were held invalid upon the authority of the Adkins case. The Justices who had! dissented in that case bowed to the ruling and Mr. Justice Brandeis dissented. Murphy v. Sardell, 269 U. S. 530; Donham v. West-Nelson Co., 273 U. S. 657. The question did not come before us again until the last . term in the Morehead case, as already noted. In that case, briefs supporting the New York statute were submitted by the States of Ohio, Connecticut," }, { "docid": "22729937", "title": "", "text": "to the standardization of selling prices of identified goods in the absence of statutory authority, we proceed to a consideration of the specific objections to the constitutionality of the act here under review. First. In respect of the due process of law clause, it is contended that the statute is a price-fixing law, which has the effect of denying to the owner of property the right to determine for himself the price at which he will sell. Appellants invoke the well-settled general principle that the right of the owner of property to fix the price at which he will sell it is an inherent attribute of the property itself, and as such is within the protection of the Fifth and Fourteenth Amendments. Tyson & Brother v. Banton, 273 U. S. 418, 429; Wolff Co. v. Industrial Court, 262 U. S. 522, 537; Ribnik v. McBride, 277 U. S. 350; Williams v. Standard Oil Co., 278 U. S. 235; New State Ice Co. v. Liebmann, 285 U. S. 262. These cases hold that, with certain exceptions, which need not now be set forth, this right of the owner cannot be denied by legislative enactment fixing prices and compelling such owner to adhere to them. But the decisions referred to deal only with legislative price fixing. They constitute no authority for holding that prices in respect of “identified” goods may not be fixed under legislative leave by contract between the parties. The Illinois Fair Trade Act does not infringe the doctrine of these cases. Section 1 affirms the validity of contracts of sale or resale of commodities identified by the trade-mark, brand or name of the producer or owner, which are in fair and open competition with commodities of the same general class produced by others, notwithstanding that such contracts stipulate (1) that the buyer will not resell except at the price stipulated by the vendor; and (2) that the producer or vendee of such a commodity shall require, upon the sale to another, that he agree in turn not to resell except at the price stipulated by such producer or vendee." }, { "docid": "23079275", "title": "", "text": "ad,equate “to supply the necessary cost of living to women workers” and “to maintain them in health and to protect their morals.” 40 Stat. 963. The standard thus set up did not take account of the reasonable value of the service rendered. As this Court said, it compelled the employer “to pay at least the sum fixed in any event, because the employee needs it, but requires no service of equivalent value from the emplqyee.” In the cases of Murphy v. Sardell, 269 U. S. 530, and Donham v. West-Nelson Co., 273 U. S. 657, the statutes of Arizona and Arkansas, respectively, were of a similar character, and both these cases were decided upon the authority of the Adkins case. New York and other States have been careful to adopt a different and improved standard, in order to meet the objection aimed at the earlier statutes, by requiring a fair equivalence of wage and service. That the difference is a material one, I think is shown by the opinion in the Adkins case. That opinion contained a broad discussion of state power,- but it- singled out as an adequate ground for the finding of invalidity that the statute gave no regard to the situation of the employer and to the reasonable value of the service for which the wage was paid. Upon this point the Court said (261 U. S. pp. 558, 559): “The feature of this statute which, perhaps more ,-than any other, puts upon it the stamp of invalidity is that it exacts from the employer an arbitrary payment for a purpose and upon a basis having no causal connection with , his business, or the contract or the work the eim ployee' engages to do. The declared basis, as already pointed out, is .not the value of the service rendered, but the extraneous circumstance that the employee needs to get a prescribed sum of money to insure her subsistence, health and morals. The ethical right of every worker, man or woman, t.o a living wage may be conceded. One of the declared and important purposes of trade" } ]

[ { "docid": "22371058", "title": "", "text": "fee. Because it found that the language of the contract was unambiguous, the district court refused to consider plaintiff’s proffer of extrinsic evidence of the parties’ intent. Hence, the $1 million discretionary bonus paid by the defendant to Sick in March of 1989 was not factored into the computation of the final fee owed plaintiff. Since ANC’s status as a party was derived as a successor-in-interest to Triangle, plaintiff’s unjust enrichment and quantum meruit claims were dismissed. Seiden appeals. We reverse. DISCUSSION A. Appellant challenges the grant of summary judgment to defendants, which it contends flowed from the trial court’s erroneous conclusion that the terms of the contract were unambiguous. It was the absence of ambiguity that the district court relied on in precluding the receipt of extrinsic evidence, which Seiden believes would have shed light on the original parties’ intent in signing the letter agreement of December 1986. The rules of construction in this area of contract law are well known. In reviewing a written contract, a trial court’s primary objective is to give effect to the intent of the parties as revealed by the language they chose to use. See Slatt v. Slatt, 64 N.Y.2d 966, 967, 488 N.Y.S.2d 645, 477 N.E.2d 1099 (1985). When the question is a contract’s proper construction, summary judgment may be granted when its words convey a definite and precise meaning absent any ambiguity. See Heyman v. Commerce and Industry Co., 524 F.2d 1317, 1320 (2d Cir.1975); Painton v. Company & Bourns, Inc., 442 F.2d 216, 233 (2d Cir.1971). Where the language used is susceptible to differing interpretations, each of which may be said to be as reasonable as another, and where there is relevant extrinsic evidence of the parties' actual intent, the meaning of the words become an issue of fact and summary judgment is inappropriate, see Heyman, 524 F.2d at 1320; Painton, 442 F.2d at 233; cf. Antilles Steamship Co., Ltd. v. Member of the American Hull Insurance Syndicate, 733 F.2d 195, 202 (2d Cir.1984) (Newman, J., concurring) (ambiguity in a contract, in the absence of relevant extrinsic evidence, presents a" } ]

[ { "docid": "15923790", "title": "", "text": "e.g., Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 430 (2d Cir.1992). Under New York law, the question of ambiguity vel non must be determined from the face of the agreement, without reference to extrinsic evidence. Kass v. Kass, 91 N.Y.2d 554, 566, 673 N.Y.S.2d 350, 696 N.E.2d 174 (1998); see also Terwilliger v. Terwilliger, 206 F.3d 240, 245 (2d Cir.2000) (construing New York law). “Contract language is ambiguous if it is ‘capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.’ ” Compagnie Financiere, 232 F.3d at 158 (quoting Sayers v. Rochester Tel. Corp. Supplemental Mgmt. Pension Plan, 7 F.3d 1091, 1095 (2d Cir.1993)); see Seiden Assocs., 959 F.2d at 428; Metro. Life Ins. Co. v. RJR Nabisco, Inc., 906 F.2d 884, 889 (2d Cir.1990). In deciding whether an agreement is ambiguous, [particular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby. Form should not prevail over substance and a sensible meaning of words should be sought. Kass, 91 N.Y.2d at 566, 673 N.Y.S.2d 350, 696 N.E.2d 174 (quoting William C. Atwater & Co. v. Panama R.R. Co., 246 N.Y. 519, 524, 159 N.E. 418 (1927)). A contextual reading of the term “Monet” leads us to conclude that the term’s meaning is ambiguous and that it is used in a number of ways throughout the agreement that cannot be reconciled without resorting to parol evidence. As the Appellate Division for the First Department has explained, “[w]here ... there are internal inconsistencies in a contract pointing to ambiguity, extrinsic evidence is admissible to determine the parties’ intent.” Fed. Ins. Co. v. Americas Ins. Co., 258 A.D.2d 39, 691 N.Y.S.2d 508, 512 (1st Dep’t 1999). In Federal Insurance Co., the court was faced with the question of whether a particular ■ wholly-owned subsidiary was covered under the terms of its parent company’s insurance policy. Despite that the policy expressly stated that it covered “each" }, { "docid": "22989743", "title": "", "text": "for less than the full amount of underlying carrier’s liability). We decline to adopt therefore, as a matter of law, the proposition that a reinsured is absolved of the duty to notify a reinsurer that it appears likely the reinsurance contract will be involved until the amount or timing of such involvement is fixed with the precision afforded by monitoring claims on a paid basis. Although an ambiguous reinsurance contract is generally construed against the reinsurer, see 19 Couch § 80:49, “[b]eing an insurance company, the reinsured is held to a high degree of compliance with policy provisions which require prompt notice to the reinsurer when a loss occurs which may potentially be within policy coverage.” 19 Couch § 80:71. Accord Insurance Co. of Pennsylvania, 922 F.2d at 521; Gibbs, 773 F.2d at 18; see Ohio Casualty Ins. Co. v. Rynearson, 507 F.2d 573, 577 (7th Cir.1974); Employers’ Liability Assurance Corp. v. Travelers Ins. Co., 411 F.2d 862, 867 (2d Cir.1969). In sum, when the obligation to provide notice arose in this case cannot be determined on the face of the agreement without resort to extrinsic evidence, and the record, viewed in the light most favorable to Christiania, would permit a rational jury to find a reasonably diligent insurance company in defendant’s position would have thought itself required under the reinsurance certificates and industry practice to provide notice prior to April 1987. Although Christiania conceded it could demonstrate no prejudice as a result of the two-month delay from April to June 1987, it does not follow that if it is determined after a trial that Great American’s duty to provide notice arose at some point in time before April 1987, Christiania would not be able to demonstrate prejudice by virtue of the longer delay. II Misrepresentation We consider next the misrepresentation issue. The relationship between a reinsurer and a reinsured is one of utmost good faith, requiring the reinsured to disclose to the reinsurer all facts that materially affect the risk of which it is aware and of which the reinsurer itself has no reason to be aware. See Sun" }, { "docid": "6493857", "title": "", "text": "which re- quire prompt notice to the reinsurer when a loss occurs which may potentially be within policy coverage.” Id. at 277 (citing 19 Couch on Insurance Sect. 80:71.) “New York courts have held that the question whether notice was given within a reasonable time may be determined as a question of law when (1) the facts bearing on the delay in providing notice are not in dispute and (2) the insured has not offered a valid excuse for the delay.” State of New York v. Blank, 27 F.3d 783, 795 (2d Cir.1994). In the instant action, there is no genuine dispute as to the underlying facts bearing on the delay (see supra at p. 129), and Stonewall has offered no excuse. Courts applying New York law routinely have found delays of less than ten months to be unreasonable as a matter of law. See Blank, 27 F.3d at 797 (citing, e.g., Utica Mutual Ins. Co. v. Fireman’s Fund Ins. Cos., 748 F.2d 118, 121, 123 (2d Cir.1984) (deferring to trial court’s finding that six month delay was unreasonable); Power Auth. v. Westinghouse Electric Corp., 117 A.D.2d 336, 342, 502 N.Y.S.2d 420, 423 (1st Dept.1986) (53 days); Gov’t Employees Ins. Co. v. Elman, 40 A.D.2d 994, 338 N.Y.S.2d 666, 667 (2d Dept.1972) (29 days)); see also American Home Assur. Co. v. Republic Ins. Co., 984 F.2d 76, 78 (2d Cir.1993) (upholding a finding of 36 days as unreasonable). Here, the delay of over two years was unreasonable as a matter of law. Stonewall therefore failed to satisfy its obligation under the reinsurance contract to provide promptly to Constitution a definitive statement of loss. S. Prejudice Constitution need not demonstrate prejudice as a result of Stonewalls failure to provide a definitive statement of loss. Under New York law, an insured’s failure to comply with a notice provision serves as a complete defense regardless of prejudice to the insurer. See Olin Corp. v. Ins. Co. of North America, 966 F.2d 718, 722-23 (2d Cir.1992); see also Security Mutual Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 440, 340 N.Y.S.2d 902, 293 N.E.2d" }, { "docid": "23157573", "title": "", "text": "the parties during the formation of the contract.” Where extrinsic evidence is conclusory or does not shed light upon the intent of the parties, a court may resort to the contra proferentem rule of contract construction and construe any ambiguities in the contract against the insurer as a matter of law. However, where the relevant extrinsic evidence offered “raises a question of credibility or presents a choice among reasonable inferences” the construction of the ambiguous terms of the contract is a question of fact which precludes the application of the contra prof-erentem rule. Morgan Stanley II, 36 F.Supp.2d at 609 (citations omitted). In applying these principles, the district court did not apply contra proferentem in Morgan Stanley’s favor, partly because “both parties are sophisticated financial entities.” Id. However, there is no general rule in New York denying sophisticated businesses the benefit of contra proferentem. See, e.g., Lazard Freres & Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1533-34, 1544 (2d Cir.1997); Westchester Resco Co. v. New England Reins. Corp., 818 F.2d 2, 3 (2d Cir.1987) (per curiam); see also 2 Couch on Insurance Sd § 22:24 (“Avoidance of the rule ... is not required merely because an insured party is a business rather than an individual.”). This is not a case between two insurance companies, see United States Fire Ins. Co. v. General Reins. Corp., 949 F.2d 569, 573-74 (2d Cir.1991), nor a case where the policyholder is “akin to ... an insurance company” because of its sophistication in matters of insurance coverage, Loblaw, Inc. v. Employers’ Liab. Assurance Corp., 85 A.D.2d 880, 446 N.Y.S.2d 743, 745 (4th Dep’t 1981). It is unsettled in New York whether contra proferentem applies if the policyholder is a sophisticated entity that negotiated contract terms. See Sobering Corp. v. Home Ins. Co., 712 F.2d 4, 10 n. 2 (2d Cir.1983) (noting that the issue remains unresolved); see also Pittston Co. Ultramar Am. Ltd. v. Allianz Ins. Co., 124 F.3d 508, 521 (3d Cir.1997) (refusing, under New Jersey law, to apply contra proferentem on behalf of a sophisticated insured who negotiated the insurance con" }, { "docid": "23304534", "title": "", "text": "N.E.2d 272 (1984) (holding that policy exclusions “are not to be extended by interpretation or implication but are to be accorded a strict and narrow construction” and that any ambiguity will be resolved against the insurer); see also Olin Corp. v. Certain Underwriters at Lloyd’s London, 468 F.3d 120, 129 (2d Cir.2006) (examining whether “migrating contamination constitutes additional property damage to trigger liability coverage” and recognizing the general “tenet under New York law that where the precise meaning of insurance policies is ambiguous, their provisions are to be construed in favor of finding coverage”). “Once a court concludes that an insurance provision is ambiguous, ‘the court may accept any available extrinsic evidence to ascertain the meaning intended by the parties during the formation of the contract.’ ” Morgan Stanley Group Inc., 225 F.3d at 275-76 (quoting Alexander & Alexander, 136 F.3d at 86; see also Seiden Assocs. v. ANC Holdings, Inc., 959 F.2d 425, 428-29 (2d Cir.1992)). “If the court concludes that an insurance policy is ambiguous, then the burden shifts to the insurer to prove that its interpretation is correct: if extrinsic evidence is available but inconclusive, the burden shifts at the trial stage.” Morgan Stanley Group Inc., 225 F.3d at 276 (citing Union Ins. Soc’y v. William Gluckin & Co., 353 F.2d 946, 951-52 (2d Cir.1965) (remanding for trial in order to allow district court to consider extrinsic evidence before applying contra proferentem)). “[I]n the absence of extrinsic evidence, the burden shifts [to the insurer] at the summary judgment stage.” Id. (citing Twombly v. AIG Life Ins. Co., 199 F.3d 20, 25-26 (1st Cir.1999)). Thus, “ ‘[i]f the extrinsic evidence does not yield a conclusive answer as to the parties’ intent,’ a court may apply other rules of contract construction, including the rule of contra proferentem, which generally provides that where an insurer drafts a policy ‘any ambiguity in [the] ... policy should be resolved in favor of the insured.’ ” Id. at 276 (quoting McCostis v. Home Ins. Co., 31 F.3d 110, 113 (2d Cir.1994)). III. The Contamination Exclusion Under the Contract Under the “all-risk” Policy in" }, { "docid": "22256505", "title": "", "text": "claim.” Id. at 278. Once a court finds that a contract is ambiguous, it may look to extrinsic evidence to determine the parties’ intended meaning. See id. at 275-76. If factfinding is necessary to determine the parties’ intent, however, the matter must be submitted to the finder of fact. See id. at 279. 1. Applicability of Extrinsic Evidence The first argument made by the Silverstein Parties invokes the doctrine that “whether an ambiguity exists must be ascertained from the face of an agreement without regard to extrinsic evidence,” Reiss v. Fin. Performance Corp., 97 N.Y.2d 195, 738 N.Y.S.2d 658, 764 N.E.2d 958, 961 (2001) (internal quotation marks); see also Md. Cas. Co. v. W.R. Grace & Co., 23 F.3d 617, 625 (2d Cir.1993) (“Interpretation of unambiguous contract language does not bring extrinsic evidence into play.”). This argument fails because it is based on the faulty premise that the September 14 Travelers policy rather than the Travelers binder governs the parties’ obligations. While New York law is clear that extrinsic evidence may not be used to contradict clearly unambiguous language contained in an insurance binder, see Am. Sur. Co. v. Patriotic Assurance Co., 242 N.Y. 54, 150 N.E. 599, 601 (1926) (holding that it was error to admit extrinsic evidence to contradict unambiguous description of location in insurance binder), it is just as well settled in New York that extrinsic evidence is admissible to determine the parties’ intentions with respect to the incomplete and unintegrated terms of a binder. See, e.g., Underwood v. Greenwich Ins. Co., 161 N.Y. 413, 55 N.E. 936, 938-39 (1900) (holding that because binder was not “in and of itself, ... such a complete and perfect instrument that it embodied] all the mutual stipulations of the parties ... [it] was open to explanation by parol proof as to the intention of the parties, and the established custom of the business”); see also Thomas v. Scutt, 127 N.Y. 133, 27 N.E. 961, 962-63 (1891) (noting that exception to general rule that parol evidence is inadmissible to contradict a written contract is where “the written instrument, [though] existing and" }, { "docid": "22989728", "title": "", "text": "62 N.E. 1066. And, though the construction of a contract is a matter of law, when resort to extrinsic evidence is necessary to shed light on the parties’ intent summary judgment ordinarily is not an appropriate remedy, see Seiden, 959 F.2d at 428, and must be denied unless, viewing the evidence in a light most favorable to the non-movant and resolving all doubts in its favor, no reasonable trier of fact could find against the movant. See id. at 429. I Notice For a reinsurer to be relieved from its indemnification obligations because of the reinsured’s failure to provide timely notice, absent an express provision in the contract making prompt notice a condition precedent, it must show prejudice resulted from the delay. See Unigard Security Ins. Co., Inc. v. North River Ins. Co., 79 N.Y.2d 576, 582, 584 N.Y.S.2d 290, 594 N.E.2d 571 (1992) (North River). The district court found that Great American’s duty to provide notice accrued in April 1987, but that there were genuine issues of material fact as to whether the delay before notice was actually given in June or July of 1987 made the notice untimely. Because Christiania conceded it was unable to demonstrate prejudice as a result of this delay, it was unnecessary for the district court to decide whether defendant’s notice was in fact untimely, and this count in the complaint was dismissed. We think the district court incorrectly concluded that, as a matter of law, the notice provisions in the reinsurance certificates were triggered no earlier than April 1987 when Great American decided to set reserves. A. Effect of Setting Reserves on Notice The primary functions served by prompt notice to a reinsurer are to enable it to set proper reserves covering anticipated losses, to decide whether it wishes to exercise its right to associate in the defense of a particular claim, and to establish premiums that accurately reflect past loss experience. See Unigard Security Ins. Co., Inc. v. North River Ins. Co., 762 F.Supp. 566, 581 (S.D.N.Y.1991) (Unigard); see also Commercial Union Ins. Co. v. International Flavors & Fragrances, Inc., 822 F.2d" }, { "docid": "6493859", "title": "", "text": "76 (1972). However, the New York Court of Appeals has held that the presumption is reversed for reinsurers; they generally must demonstrate that late notice was prejudicial in order to avoid obligations under a reinsurance contract. See Unigard Security Ins. Co. v. North River Ins. Co., 79 N.Y.2d 576, 583, 584 N.Y.S.2d 290, 293, 594 N.E.2d 571, 574 (1992). While the Unigard court concludes that the insurance “no prejudice” rule does not apply to a failure to comply with the prompt notice requirement in a contract of reinsurance, the decision is of limited scope: “All we hold here is that the reinsurer must demonstrate how it was prejudicial and may not rely on the presumption of prejudice that applies in the late notice disputes between primary insurers and their insureds.” Id. at 584, 584 N.Y.S.2d at 294, 594 N.E.2d at 575 (emphasis added). We address this question, it must be noted, under the specific prompt notice provision contained in clause C of the North River certificate. There is nothing in this provision or elsewhere in the North River certificate indicating that the parties intended that .the giving of notice should operate as a condition precedent. If the ordinary rules of contract were applied, the prompt notice provision in the North River certificate would not be construed as a condition precedent. Id. at 582, 584 N.Y.S.2d at 293-94, 594 N.E.2d at 574-75 (internal citations omitted). The Second Circuit subsequently has recognized that Unigard sets a default rule applicable only to reinsurance contracts that do not set prompt notice as a condition precedent. See Christiania, 979 F.2d at 273 (“For a reinsurer to be relieved from its indemnification obligations because of the reinsured’s failure to provide timely notice, absent an express provision in the contract making prompt notice a condition precedent, it must show prejudice resulted from the delay”) (emphasis added). In the instant case, however, the prompt notice provision clearly indicates that it is intended to serve as a condition precedent. See supra at p. 127. It follows that Unigard does not require a showing of prejudice in order for Constitution" }, { "docid": "23670248", "title": "", "text": "89 N.Y.2d at 599-600, 657 N.Y.S.2d 385, 679 N.E.2d 624; Farm Stores, Inc. v. Sch. Feeding Corp., 79 A.D.2d 504, 504-05, 433 N.Y.S.2d 453 (1st Dep’t 1980), aff'd 53 N.Y.2d 910, 440 N.Y.S.2d 633, 423 N.E.2d 56 (N.Y.1981). Moreover, Article 30 of the 1980 license agreement appears to express the parties’ intent to form an integrated agreement. See Primex, 89 N.Y.2d at 596-97, 599-600, 657 N.Y.S.2d 385, 679 N.E.2d 624. Nonetheless, extrinsic evidence may be used as a guide to Stani’s rights after April 1996 because the 1980 license agreement is facially ambiguous as to these rights. “Even though a document may be fully integrated with respect to the ultimate terms of the agreement, the meaning of those terms may remain unclear.” U.S. Fire Ins. Co. v. Gen. Reinsurance Corp., 949 F.2d 569, 571 (2d Cir.1991) (applying New York law). In such cases, it is proper to consider extrinsic evidence in interpreting the ambiguous terms, irrespective of the parol evidence rule. Id. The extrinsic evidence in this case, however, does not resolve the ambiguities over Stani’s rights for purposes of its summary judgment motion. The 1980 escrow agreement and the 1976 license agreement shed little light on the parties’ intent with regard to Stani’s rights to Topps formulas after April 1996. In fact, the strongest pieces of extrinsic evidence identified by the parties are Stani’s own pleadings and the statement of one of its experts that it had no need for these formulas after that date—and possibly even much earlier. Far from proving Stani’s case, these pieces of evidence lend support to Topps’ position. Ill District Court’s Analysis The district court viewed the evidence in a different light. It did so in the context of interpreting what it erroneously believed to be unambiguous contract language. Nonetheless, we address its reasoning at this juncture. Were this reasoning sound, it would apply equally to our evaluation of the evidence for purposes of resolving the ambiguities in the 1980 license agreement. A. Of Trademark Law The trial court relied heavily on the 1980 escrow agreement, which it read in the context of what" }, { "docid": "22442702", "title": "", "text": "acted at their own peril. The all risk insurers contend that the insured, Pan American, should not have the benefit of contra proferentem because the exclusions in the all risk policies are not legally ambiguous. Citing cases like State Farm Mutual Automobile Insurance Co. v. Xaphes, 384 F.2d 640 (2d Cir. 1967), and Order of United Commercial Travelers v. Knorr, 112 F.2d 679 (10th Cir. 1940), they argue that the principle of construing ambiguity against the speaker does not apply to insurance terms that have “already been judicially defined.” We find this argument completely unpersuasive on the facts of this case. The all risk insurers overstate when they assert that their exclusions have been subjected to extensive judicial interpretation. Terms such as “insurrection,” “rebellion” and “civil commotion” have received little of the clear judicial construction which' the courts in Xaphes and Knorr found in regard to the terms in those cases. See 384 F.2d at 641-642; 112 F.2d at 682. It is not irrelevant that the various counsel in this case have been able to infer radically different versions of the “es tablished judicial meanings” of the exclusions. The plausibility of several of these intei’pretations is convincing evidence of the ambiguity of the exclusions, and a compelling reason for applying contra proferentem against the all risk insurers. The all risk insurers claim that contra proferentem is not applied where “the dispute is in reality between groups of insurers.” While their statement of principle may accurately represent the law in some jurisdictions, see, e: g., Boston Insurance Co. v. Fawcett, 357 Mass. 535, 538, 258 N.E.2d 771, 776 (1970), it does not state New York law. In London Assurance Corp. v. Thompson, 170 N.Y. 94, 62 N.E. 1066 (1902), the court resolved a dispute between an insurer and a reinsurer by construing the ambiguity of a dubious coverage clause against the author of the clause, the insurer, relying on the maxim of contra proferentem. In any event, the present case is no mere dispute between insurers. The all risk insurers’ frivolous “cross-claim” against the war risk insurers did not convert this" }, { "docid": "22256506", "title": "", "text": "contradict clearly unambiguous language contained in an insurance binder, see Am. Sur. Co. v. Patriotic Assurance Co., 242 N.Y. 54, 150 N.E. 599, 601 (1926) (holding that it was error to admit extrinsic evidence to contradict unambiguous description of location in insurance binder), it is just as well settled in New York that extrinsic evidence is admissible to determine the parties’ intentions with respect to the incomplete and unintegrated terms of a binder. See, e.g., Underwood v. Greenwich Ins. Co., 161 N.Y. 413, 55 N.E. 936, 938-39 (1900) (holding that because binder was not “in and of itself, ... such a complete and perfect instrument that it embodied] all the mutual stipulations of the parties ... [it] was open to explanation by parol proof as to the intention of the parties, and the established custom of the business”); see also Thomas v. Scutt, 127 N.Y. 133, 27 N.E. 961, 962-63 (1891) (noting that exception to general rule that parol evidence is inadmissible to contradict a written contract is where “the written instrument, [though] existing and valid, ... [is] incomplete, either obviously, or at least possibly, and ... parol evidence [is admitted], not to contradict or vary, but to complete, the entire agreement, of which the writing is only a part”). Indeed, the Silverstein Parties have relied on this exception to the parol evidence rule in the context of their disputes with other insurers. See, e.g., SR Int’l Bus. Ins. Co. v. World Trade Ctr. Props. LLC, 2003 WL 289600, at *1 (S.D.N.Y. Feb 11, 2003) (agreeing with the Silverstein Parties that question of whether defendant-insurer Zurich’s binder “provid[ed] coverage on a ‘per occurrence’ basis [could] not be resolved without resort to extrinsic evidence”); Appellants’ Rule 54(b) Br. at 2-3 (arguing that due to the fact that “binders are a species of temporary, un integrated contracts,” a court must resort to extrinsic evidence of industry usage and custom to discern the expectations of the parties, particularly where, as here, the binders are “not remotely unambiguous”). In fact, in their brief appealing the district court’s grants of summary judgment in the Rule" }, { "docid": "18600701", "title": "", "text": "policy, then a [court] must enforce the plain meaning of the words_” Id. However, if a provision is ambiguous, when construing it, “the court must remain as faithful as possible to the clear intent of the parties.” Uniroyal, 707 F.Supp. at 1377. In this exercise, ambiguous terms should be viewed from the vantage point of the “reasonable expectations and purposes of the ordinary businessman.” Avondale Indus., Inc. v. Travelers Indem. Co., 697 F.Supp. 1314, 1319 (S.D.N.Y.1988), aff'd, 887 F.2d 1200 (2d Cir.1989), cert. denied, 496 U.S. 906, 110 S.Ct. 2588, 110 L.Ed.2d 269 (1990); see Fried v. North River Ins. Co., 710 F.2d 1022, 1025 (4th Cir.1983) (applying New York law); see Atl. Cement v. Fidelity & Cas. Co. of N.Y., 91 A.D.2d 412, 459 N.Y.S.2d 425, 429 (1st Dep’t 1983), aff'd 63 N.Y.2d 798, 481 N.Y.S.2d 329, 471 N.E.2d 142 (1984). If the intent of the parties is evident after viewing the contract in its entirety, the court may not rewrite the terms of the policy in an effort to extend coverage out of a desire for an equitable outcome. Fried v. North River, 710 F.2d at 1025-26. If the policy terms are ambiguous, the parties should be afforded the opportunity to offer extrinsic evidence as to their intent. Id. at 1374. If the extrinsic evidence does not resolve the ambiguity, then the court applies the state law presumption of contra 'proferen-tem, construing the policy against the insurer. See Westchester Resco. v. New Eng. Reinsurance Group, 818 F.2d 2, 3 (2d Cir.1987) (per curiam); Uniroyal, 707 F.Supp. at 1373; Sobering Corp. v. Home Insurance Co., 712 F.2d 4, 10 (2d Cir.1983). Under the P & I policies issued to PLI, American Club agreed to: [IJndemnify the assured against any loss, damage or expense which the assured shall become liable to pay and shall pay by reason of the fact that the assured is the owner, or operator, manager, charterer, ... of the insured vessel ... and which shall result from the following liabilities, risks, events, occurrences and expenditures: (1) Liability for ... personal injury ... or illness.... R1 at" }, { "docid": "18600721", "title": "", "text": "contained in an affidavit, R1 at 391, and in ¶ 13 of the parties’ Agreed Statement of Facts, R1 at 404-05, both setting forth American Club’s policy with respect to applying deductibles to asbestotic disease claims. The affidavit’s sole reference to PLI is contained in the following sentence: “Members, including Prudential, who have submitted such [as-bestotic disease] claims, have been aware of the Club’s practice and policy [respecting deductibles] in that regard.” R1 at 391. Nor does the Statement of Facts refer specifically to PLI’s practice in applying deductibles under the policies. This evidence, therefore, fails to sufficiently detail the parties’ practice, as distinguished from American Club’s policy, in applying deductibles. I do not read the relevant cases as permitting a court, in discerning the parties’ intent, to give conclusive weight to evidence of only one party’s interpretation of the contract, established years after the parties entered into the contract, without evidence that the other party concurred in that interpretation. Although the evidence American Club points to does not necessarily support its contention, American Club has at least put forward the possibility, uncontested by MALC, that such a practice between the parties occurred. A decision on summary judgment is appropriate under New York law where the extrinsic evidence offered to provide evidence of the parties’ intent regarding an ambiguous term is immaterial or fails to raise an issue of credibility or a choice among reasonable inferences. See Wesolowski, 33 N.Y.2d at 172, 350 N.Y.S.2d at 898, 305 N.E.2d at 909-10; Uniroyal, 707 F.Supp. at 1373; Alfin, Inc. v. Pacific Ins. Co., 735 F.Supp. 115, 118 (S.D.N.Y.1990). However, when a reviewing court determines that a provision is ambiguous and that extrinsic evidence may more fully disclose the parties’ intent, the court should remand the case to the trial court for “any necessary consideration and findings” unless all extrinsic evidence on the issue has already been presented to the trial court. U.S. Fire Ins. Co. v. General Reinsurance Carp., 949 F.2d at 574. I think the case at bar falls within the latter rule. It is unclear on the present record whether" }, { "docid": "3209571", "title": "", "text": "to fathom the parties’ intent. That intent may be proven by extrinsic evidence.”). Analysis of extrinsic evidence may entail review of “negotiations ... made prior to or contemporaneous with the execution of a written contract which may tend to vary or contradict its terms.” U.S. Fire Ins. Co. v. Gen. Reinsurance Corp., 949 F.2d 569, 571 (2d Cir.1991) (alteration omitted) (quoting 67 Wall St. Co. v. Franklin Nat’l Bank, 37 N.Y.2d 245, 248-49, 371 N.Y.S.2d 915, 333 N.E.2d 184 (1975)); accord Shann v. Dunk, 84 F.3d 73, 80 (2d Cir.1996). The review of the surrounding facts and circumstances may also include consideration of industry custom and practice, see U.S. Naval Inst., 875 F.2d at 1048-49, and any relevant course of performance or course of dealing, see Hoyt v. Andreucci, 433 F.3d 320, 332 (2d Cir.2006). C. The Doctrine of Contra Proferentem Finally, if unable to determine the parties’ intent based either on the text of an agreement or after evaluating admissible extrinsic evidence, the Court may, in some circumstances, apply the doctrine of contra proferentem to construe any ambiguity against the drafter of the contract. See M. Fortunoff of Westbury Corp. v. Peerless Ins. Co., 432 F.3d 127, 142 (2d Cir.2005). This, however, is a matter of last resort. See id. (“[C]ourts should not resort to contra proferentum [sic] until after consideration of extrinsic evidence to determine the parties’ intent.” (citation omitted)); Albany Sav. Bank, FSB v. Halpin, 117 F.3d 669, 674 (2d Cir.1997) (New York applies the rule of contra proferentem “only as a matter of last resort after all aids to construction have been employed without a satisfactory result” and “the rule does not preclude the admission of parol evidence” (citation omitted)); see also U.S. Fire Ins., 949 F.2d at 574 (“Where ... the justifications for applying [contra proferentem ] seem to be lacking, and there exists ample extrinsic evidence, which, properly considered, clarifies the ... ambiguity, we find that the district court erred in applying the doctrine of contra proferentem. ”). III. Textual Analysis of Supplemental Indenture § 1.7(b) Pursuant to this familiar analytic framework, the Court" }, { "docid": "23277946", "title": "", "text": "This appeal followed. DISCUSSION We first address Pan Am’s parol evidence contention. Pan Am argues that the Agency Agreement clearly and unambiguously limited Care Travel’s territory to “London Wl.” Thus, appellant contends that the district court erred in determining that the Agency Agreement was ambiguous and, as result, permitting the jury to consider parol evidence in interpreting the scope of Care Travel's agency. “In a contract action, the court’s general objective should be to give effect to the [expressed] intentions of the parties in entering into the agreements.” Metropolitan Life Ins. Co. v. RJR Nabisco, Inc., 906 F.2d 884, 889 (2d Cir.1990); see also Hunt Ltd. v. Lifschultz Fast Freight, Inc., 889 F.2d 1274, 1277 (2d Cir.1989); Hartford Acci. & Indemnity Co. v. Wesolowski, 33 N.Y.2d 169, 171-72, 350 N.Y.S.2d 895, 898, 305 N.E.2d 907, 910 (1973). Under New York law, which governs the Agreement at issue here, if a contract is unambiguous on its face, the parties’ rights under such a contract should be determined solely by the terms expressed in the instrument itself “rather than from extrinsic evidence as to terms that were not expressed or judicial views as to what terms might be preferable.” Metropolitan Life Ins. Co., supra, 906 F.2d at 889; see also W. W. W. Assoc., Inc. v. Giancontieri, 11 N.Y.2d 157, 565 N.Y.S.2d 440, 443, 566 N.E.2d 639, 642 (1990); Teitelbaum Holdings, Ltd. v. Gold, 48 N.Y.2d 51, 56, 421 N.Y.S.2d 556, 559, 396 N.E.2d 1029, 1031 (1979). On the other hand, parol evidence may be admitted to explain a writing when its terms are ambiguous. Investors Ins. Co. of America v. Dorinco Reinsurance Co., 917 F.2d 100, 104 (2d Cir.1990); Health-Chem Corp. v. Baker, 737 F.Supp. 770, 773 (S.D.N.Y.), aff'd, 915 F.2d 805 (2d Cir.1990). Contract language is unambiguous when it has “ ‘a definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference of opinion.’ ” Hunt Ltd., supra, 889 F.2d at 1277 (quoting Breed v. Insurance Co. of North America, 46 N.Y.2d 351," }, { "docid": "23157572", "title": "", "text": "But we cannot decide whether the allegation is enough on this appeal because the district court did not resolve this ambiguity in the course of its bench trial. See Union Ins. Soc’y v. William Gluckin & Co., 353 F.2d 946, 952 (2d Cir.1965) (“[S]ound judicial administration strongly suggests that a court should not attempt to reconstruct the intent of the parties in a complicated factual situation before they have had an opportunity to present evidence on that issue before the fact-trier”). The district court’s analysis of the extrinsic evidence admitted at trial was limited to the meaning of “investment counselor.” We therefore vacate the portion of the judgment relating to the White-stone claim, and remand for further fact-finding as to the parties’ intent. D. Considerations on Remand The district court articulated the principles of New York law applicable to resolving ambiguities in insurance contracts: Once a court determines that, as a matter of law, a term of an insurance policy is ambiguous, “it may accept any available extrinsic evidence to ascertain the meaning intended by the parties during the formation of the contract.” Where extrinsic evidence is conclusory or does not shed light upon the intent of the parties, a court may resort to the contra proferentem rule of contract construction and construe any ambiguities in the contract against the insurer as a matter of law. However, where the relevant extrinsic evidence offered “raises a question of credibility or presents a choice among reasonable inferences” the construction of the ambiguous terms of the contract is a question of fact which precludes the application of the contra prof-erentem rule. Morgan Stanley II, 36 F.Supp.2d at 609 (citations omitted). In applying these principles, the district court did not apply contra proferentem in Morgan Stanley’s favor, partly because “both parties are sophisticated financial entities.” Id. However, there is no general rule in New York denying sophisticated businesses the benefit of contra proferentem. See, e.g., Lazard Freres & Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1533-34, 1544 (2d Cir.1997); Westchester Resco Co. v. New England Reins. Corp., 818 F.2d 2, 3 (2d" }, { "docid": "15282505", "title": "", "text": "opposing the motion. Matsushita, 475 U.S. at 578-88, 106 S.Ct. 1348. The court must also be mindful that the underlying facts are required to be ones that would be admissible in evidence at trial and shown through an affidavit by one competent to testify. FRCP 56(e). Put another way, the disputed facts must be material as well as admissible at trial before the court need concern itself with drawing inferences favorably to the non-movant. It is perfectly appropriate for the court to make evidentiary rulings on a motion for summary judgment. See General Electric Co. v. Joiner, — U.S. -, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). The Second Circuit has held that summary judgment is appropriate even when the issue is a contract’s proper construction so long as the words of the contract convey a definite and precise meaning absent any ambiguity. See Lazard Freres v. Protective Life Insurance Company, 108 F.3d 1531 (2d Cir.1997); Seiden Associates, Inc. v. ANC Holdings, Inc. 959 F.2d 425, 428 (2d Cir.1992). A writing is unambiguous when, construing a as whole and giving each section its plain meaning, the writing is susceptible to only one interpretation. Dale Carnegie & Associates, Inc. v. Thomas, 1993 WL 330457, p. *2 (S.D.N.Y.1993). If a writing is clear and unambiguous from its face, its meaning must be determined without resort to extrinsic evidence. In re Kam Kuo Seafood Corporation, 76 B.R. 297, 301 (Bankr.S.D.N.Y.1987); See also Goodheart Clothing Company, Inc. v. Goodman Enterprises, Inc., 962 F.2d 268, 272 (2d Cir.1992) (plain meaning should govern the interpretation of the agreement without resort to extrinsic evidence of any nature). It is axiomatic therefore that a contract is to be interpreted so as to give effect to the intent of the parties as expressed in the unequivocal language employed. In re Hooker Investments, Inc., LJ, 145 B.R. 138, 143 (Bankr.S.D.N.Y.1992), citing, Citibank, N.A. v. Plapinger, 66 N.Y.2d 90, 495 N.Y.S.2d 309, 485 N.E.2d 974 (1985) rearg. denied, 67 N.Y.2d 647, 499 N.Y.S.2d 1031, 490 N.E.2d 558 (1986). Moreover, it is well settled in New York that the threshold decision on" }, { "docid": "22989727", "title": "", "text": "misrepresentation claim for failure to satisfy the requirements of Fed.R.Civ.P. 9(b). Christiania decided not to file a third amended complaint, and final judgment dismissing the action was entered on August 26, 1991. Christia-nia appeals. We affirm in part, reverse in part, and remand this case to the district court. DISCUSSION In this diversity litigation, New York law controls. A reinsurance contract is governed by the rules of construction applicable to contracts generally. See Sun Mutual Ins. Co. v. Ocean Ins. Co., 107 U.S. 485, 506, 1 S.Ct. 582, 596, 27 L.Ed. 337 (1882); London Assurance Corp. v. Thompson, 170 N.Y. 94, 99, 62 N.E. 1066 (1902); 19 G. Couch, Cyclopedia of Insurance Law § 80:48 (Rev.2d ed. 1983) (Couch). Thus, when the terms of the contract (“prompt notice”) are ambiguous, as here, reference to extrinsic evidence provides guidance to the parties’ intent. See Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428-29 (2d Cir.1992). Such extrinsic evidence may in appropriate cases include industry custom and practice. See London Assurance, 170 N.Y. at 99, 62 N.E. 1066. And, though the construction of a contract is a matter of law, when resort to extrinsic evidence is necessary to shed light on the parties’ intent summary judgment ordinarily is not an appropriate remedy, see Seiden, 959 F.2d at 428, and must be denied unless, viewing the evidence in a light most favorable to the non-movant and resolving all doubts in its favor, no reasonable trier of fact could find against the movant. See id. at 429. I Notice For a reinsurer to be relieved from its indemnification obligations because of the reinsured’s failure to provide timely notice, absent an express provision in the contract making prompt notice a condition precedent, it must show prejudice resulted from the delay. See Unigard Security Ins. Co., Inc. v. North River Ins. Co., 79 N.Y.2d 576, 582, 584 N.Y.S.2d 290, 594 N.E.2d 571 (1992) (North River). The district court found that Great American’s duty to provide notice accrued in April 1987, but that there were genuine issues of material fact as to whether the delay" }, { "docid": "22989744", "title": "", "text": "determined on the face of the agreement without resort to extrinsic evidence, and the record, viewed in the light most favorable to Christiania, would permit a rational jury to find a reasonably diligent insurance company in defendant’s position would have thought itself required under the reinsurance certificates and industry practice to provide notice prior to April 1987. Although Christiania conceded it could demonstrate no prejudice as a result of the two-month delay from April to June 1987, it does not follow that if it is determined after a trial that Great American’s duty to provide notice arose at some point in time before April 1987, Christiania would not be able to demonstrate prejudice by virtue of the longer delay. II Misrepresentation We consider next the misrepresentation issue. The relationship between a reinsurer and a reinsured is one of utmost good faith, requiring the reinsured to disclose to the reinsurer all facts that materially affect the risk of which it is aware and of which the reinsurer itself has no reason to be aware. See Sun Mutual, 107 U.S. at 510, 1 S.Ct. at 599-600; Sumitomo, 75 N.Y.2d at 303, 552 N.Y.S.2d 891, 552 N.E.2d 139. In certain cases, the description of items covered under the original policy may be so imprecise as to warrant rescission of the contract because the rein-surer was not adequately apprised of the risk. See Merchants’ & Shippers’ Ins. Co. v. St. Paul Fire & Marine Ins. Co., 219 A.D. 636, 640-41, 220 N.Y.S. 514 (1st Dep’t 1927); see also Btesh v. Royal Ins. Co., Ltd., of Liverpool, 49 F.2d 720, 721 (2d Cir.1931). Christiania asserts the right to rescind the instant insurance contracts because ATVs were not listed as a separate category of products distributed by Honda. A fact is material so as to void ab initio an insurance contract if, had it been revealed, the insurer or reinsurer would either not have issued the policy or would have only at a higher premium. See Merchants’, 219 A.D. at 639, 220 N.Y.S. 514; 2 Dunham, § 29.06[l][b]. Materiality is ordinarily a question of fact, see" }, { "docid": "22989726", "title": "", "text": "notice accrued in April of 1987, but denied summary judgment because there was a genuine issue of material fact as to whether the notice provided in June 1987 was sufficiently prompt. See id. at 161. As to defendant’s alleged breach of duty, the district court concluded that because it had no duty to provide notice prior to April 1987 and since full disclosure was made at the August 27 meeting, no claim could be proven concerning the adequacy of the notice provided. See id. at 161-62. On the misrepresentation claim, the trial court found genuine issues of material fact concerning whether the risk posed by AT Vs was material at the time of contracting and whether defendant then had knowledge of that risk. See id. at 163. Christiania filed a second amended complaint that was dismissed on June 6, 1991. It conceded it could not demonstrate it had suffered any prejudice as a result of the de'ay in providing notice from April to June 1987, and the amended complaint was found deficient as to the misrepresentation claim for failure to satisfy the requirements of Fed.R.Civ.P. 9(b). Christiania decided not to file a third amended complaint, and final judgment dismissing the action was entered on August 26, 1991. Christia-nia appeals. We affirm in part, reverse in part, and remand this case to the district court. DISCUSSION In this diversity litigation, New York law controls. A reinsurance contract is governed by the rules of construction applicable to contracts generally. See Sun Mutual Ins. Co. v. Ocean Ins. Co., 107 U.S. 485, 506, 1 S.Ct. 582, 596, 27 L.Ed. 337 (1882); London Assurance Corp. v. Thompson, 170 N.Y. 94, 99, 62 N.E. 1066 (1902); 19 G. Couch, Cyclopedia of Insurance Law § 80:48 (Rev.2d ed. 1983) (Couch). Thus, when the terms of the contract (“prompt notice”) are ambiguous, as here, reference to extrinsic evidence provides guidance to the parties’ intent. See Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428-29 (2d Cir.1992). Such extrinsic evidence may in appropriate cases include industry custom and practice. See London Assurance, 170 N.Y. at 99," } ]

[ { "docid": "3611260", "title": "", "text": "or its value from such person.” Section 60a, of the act (section 9644) defines a preference as follows: “A person, shall be deemed to have given a preference if, being insolvent, he has, within four months before the filing' of the petition, * * made a transfer of any of Ms property, and the effect of the enforcement of such .3 » * transfer will be to enable any one of Ms creditors to obtain a greater percentage of Ms debt than any other of such creditors of the same class.” It is conceded by the petitioning creditor that, if he has received a voidable preference, he cannot maintain his petition without surrendering or offering to surrender such preference before adjudication. It is therefore unnecessary to consider the question whether such a creditor may file such a petition without making a surrender of any voidable preference, previously obtained, a question which, in view of the distinction between the proving and the allowance of a claim in bankruptcy, and the consequent difference between the meaning of the terms “provable” and “allowable,” is not free from difficulty, and cannot, in my opinion, be regarded as authoritatively decided. Frederic L. Grant Shoe Co. v. W. M. Laird Co., 212 U. S. 445, 29 Sup. Ct. 332, 53 L. Ed. 591; Lesser v. Gray, 236 U. S. 70, 35 Sup. Ct. 227, 59 L. Ed. 471; In re Gillette (D. C.) 104 Fed. 769; In re Herzikopf (D. C.) 118 Fed. 101; In re Hornstein (D. C.) 122 Fed. 266; In re Fishblate Co. (D. C.) 125 Fed. 986; Stevens v. Nave-McCord Mercantile Co., 150 Fed. 71, 80 C. C. A. 25 (C. C. A. 8); In re Murphy (D. C.) 225 Fed. 392; In re Automatic Typewriter & Service Co., 271 Fed. 1 (C. C. A. 2). Passing, then, to the question whether, upon the facts disclosed by the record, this petitioning creditor'received a voidable preference prior to the time of the filing of his petition in bankruptcy, I am clearly of the opinion that such question must be answered in the negative." } ]

[ { "docid": "2370104", "title": "", "text": "had, must be appropriated to the payment of the partnership debts. Should any surplus of the partnership property remain after paying the partnership debts, such surplus is added to the assets of the individual partners. Section 5f of the bankrupt act. Proof of the claim of the partnership estate against individual estates, and vice versa, is permitted. Both the individual estates and partnership' estate may be marshaled, so as to prevent preferences, and secure an equitable distribution of the property of the several .estates. Section 5g. The transfer of the partnership interest by Prentice to Gillette does not deprive creditors of the right to hold partnership assets for payment of their claims; and creditors having claims against an insolvent debtor who is a member of a co-partnership cannot, where the debtor has been adjudicated bankrupt, receive dividends from partnership assets until the co-partnership creditors have been paid in full. In re Wilcox (D. C.) 94 Fed. 84, 2 Am. Bankr. R. 117. I am of the opinion that the payment of-$4,000 to the bank was an unlawful preference, which gave to the Bank of Batavia a greater percentage of its debt against Gillette, as an individual, than any other creditor. An important question in this case, however, and which was not presented to the special master, is whether the Bank of Batavia, which has accepted and retains an unlawful, preference, may petition to have the said Gillette & Prentice, from whom such unlawful preference was obtained, declared involuntary bankrupts. By section 59b of the bankrupt act it is provided that: “Three or more creditors who have provable claims against any person which amount in the aggregate, in excess of the value of securities held by them, if any, to five hundred dollars or over; or if all of the creditors of such person are less than twelve in number, then one of such creditors whose claim equals such amount may file a petition to have him adjudged a bankrupt.” It is argued with much force that the true intent of the act contemplates that where a petition is filed by" }, { "docid": "1693762", "title": "", "text": "however, we must note appellant’s claim that two of the three original petitioners did not have provable claims as required by § 59, sub. b, 11 U.S.C.A. § 95, sub. b. The District Court supported one of these claims on disputed testimony ; while the other, asserted to be barred by the statute of limitations, was not so barred when the petition was filed. But their status becomes academic here, since between the last appeal to this court and the new hearing below, two additional creditors with unquestionably valid claims have been allowed to intervene and join in the petition. Creditors who intervene before adjudication may be counted in determining whether the necessary three petitioning creditors exist. Canute S. S. Co. v. Pittsburgh & West Virginia Coal Co., 263 U.S. 244, 44 S.Ct. 67, 68 L.Ed. 287. Appellant’s only reply is that the requests to intervene should never have been granted. It would appear that under § 59, sub. f, intervention to join in an involuntary petition is a matter of right, Canute S. S. Co. v. Pittsburgh & West Virginia Coal Co., supra; Guterman v. C. D. Parker & Co., 1 Cir., 86 F.2d 546, certiorari denied, 300 U.S. 677, 57 S.Ct. 670, 81 L.Ed. 882, though compare In re Brown, supra, 87 F.2d at page 308. Even if the granting of leave to intervene is discretionary, we have said that we will not upset the ruling of the District Court except for clear cause shown. In re Tidewater Coal Exchange, 2 Cir., 280 F. 638, certiorari denied, Delaware S. S. Co. v. New England Coal & Coke Co., 259 U.S. 584, 42 S.Ct. 587, 66 L.Ed. 1075. No satisfactory reason has been presented why intervention should not have been allowed here. We turn next to the issue of Brown’s solvency. The alleged act of bankruptcy is that Brown, while insolvent, per mitted the present objecting creditor, Haight, to obtain a lien against his property by judicial proceedings — the lien which Haight is here trying to preserve — and failed to discharge it within thirty days thereafter. Bankruptcy" }, { "docid": "1011568", "title": "", "text": "the decisions, “provable” is held to mean any claim which might be proved, whether preferred or not; while other cases hold that it is the equivalent of “allowable.” See In re Standard Detroit Tractor Co. (D. C.) 275 F. 952, 954. But ibe weight of authority is that a creditor, who has received a voidable preference, may still join in the petition, though he may not be counted as one of the required three petitioning creditors, unless he surrender's his preference. Stevens v. Nave-McCord Co. (C. C. A.) 150 F. 71; In re Gillette (D. C.) 104 F. 769; Canute S. S. Co. v. Pittsburg Coal Co., 263 U. S. 244, 44 S. Ct. 67, 68 L. Ed. 287; In re Cooper (D. C.) 12 F.(2d) 485. As was said in the Stevens Case, page 76: “The evil of preferences which the bankrupt law was enacted to remove, the remedy of an equal distribution of the property of the bankrupt which it was passed to provide, the prohibition of the use of their claims by preferred creditors until they surrender them, which the act contains, the general scope of the law and all its provisions read and considered together, and the duty to give to it a rational and sensible interpretation, have forced our minds to the conclusion that it was the intention of Congress that creditors who hold voidable preferences should not be counted either for or against the petition for an adjudication in bankruptcy until they surrender their preferences. This intention, thus deduced, must therefore prevail over the technical rules of construction which counsel for the appellees invoke. The result is: A creditor who holds a voidable preference has a provable claim in the sense that he may make and file the formal proof thereof specified by the bankruptcy law; but he may not procure an allowance of his claim, he may not vote at a creditors’ meeting, and he may not obtain any advantage from his claim in the bankruptcy proceeding before he surrenders his preference. “Such a preferred creditor may present or may join in a" }, { "docid": "13523470", "title": "", "text": "$700 to their attorneys. The allowances for disbursements remained unchanged. It affirmatively appears, from the claims set forth in the petition in involuntary bankruptcy, that Mr. Page did not have a provable debt against the alleged bankrupt. His claim is based upon alleged breaches of the agreement marked Schedule A, and it there appears that the claim he asserts did not and could not arise from a breach of that contract. His claim, if any, for failure to deliver the stock to him, was not against the alleged bankrupt. By section 1, subd. 9, of the Bankruptcy Act (Comp. St. § 9585), a creditor means any one who owns a demand or claim provable in bankruptcy against the bankrupt, and section 59b (Comp. St. § 9643) requires that there be three or more creditors whose provable claims against any person amount in the aggregate to $500 or over, before they may file a petition to have him adjudged a bankrupt. Furthermore, it is required that there exist provable debts due to each of the petitioning creditors in the required amount in order to give the court jurisdiction of the proceeding, and the existence of such debts and their nature must be alleged with particularity and definiteness, so as to enable the court to find from the petition the essential jurisdictional facts. In re Farthing (D. C.) 202 F. 557. Since it appears, from an examination of the petition and its annexed Schedule A, that Page was not a creditor within the meaning of the Bankruptcy Act, the petition was signed by t\\yo creditors, and their combined credits did not amount to the sum of $500. By subdivision (f) others than the original petitioners may come in a proceeding which has already been instituted under section 59b, but no such application was made in this proceeding. For this defect in the original petition, a motion to dismiss is the proper remedy, and the filing of the answer did not waive the defect raised on the motion to dismiss. Teal v. Walker, 111 U. S. 242, 4 S. Ct. 420, 28 L." }, { "docid": "23422673", "title": "", "text": "evil of preferences which the bankrupt law was enacted to remove, the remedy of an equal distribution of the property of the bankrupt which it was passed to provide, the prohibi- • tion of the use of their claims by preferred creditors until they surrender them which the act contains, the general scope of the law and all its provisions read and considered together, and the duty to give to it a rational and sensible interpretation, have forced our minds to the conclusion that it was the intention of Congress that creditors who hold voidable preferences should not be counted either for or against the petition for an adjudication in bankruptcy until they surrender their preferences. This intention, thus deduced, must therefore prevail over the technical rules of construction which counsel for the appellees invoke. The result is: A creditor who holds a voidable preference has a provable claim in the sense that he may make and file the formal proof thereof specified by the bankruptcy law; but he may not procure an allowance of his claim, he may not vote at a creditors’ meeting, and he may not obtain any advantage from his claim in the bankruptcy proceeding before he surrenders his preference. Such a preferred creditor may present or may join in a petition for an adjudication of bankruptcy. But he may not be counted for the petition unless he surrenders his-preference before the adjudication. In re Hornstein, 122 Fed. 266, 273, 277; In re Gillette (D. C.) 104 Fed. 769. Such a creditor may not be counted against the petition, nor in computing the number of creditors that must join in the petition, unless he first surrenders his preference. But, if he surrenders lus preference before the adjudication, he may be counted after the surrender. In re Miner (D. C.) 104 Fed. 520; Collier on Bankruptcy (5th Ed.) 440, 481; In re Blount (D. C.) 142 Fed. 263, 266; Leighton v. Kennedy, 64 C. C. A. 265, 267, 129 Fed. 737, 739; In re Israel, Fed. Cas. No. 7,111; Clinton v. Mayo, Fed. Cas. No. 2,899; In" }, { "docid": "6892658", "title": "", "text": "BREWSTER, District Judge. This involuntary petition in bankruptcy is brought by one creditor, alleging that all of the creditors of Cooper were less than twelve in number. The petition was referred to a special master to report on the question of adjudication. The ease is now before the court on the master’s report, with certain requests for findings of fact and rulings of law. In his report, which contains a very comprehensive recital of the facts of the case, including some of the evidence submitted, the master finds that the petitioner was a creditor of the alleged bankrupt, having a claim of over $1,000, that the creditors were less than twelve in number, and that the alleged bankrupt had committed acts of bankruptcy set forth in the petition, in that he had, while insolvent, transferred a portion of his assets to certain creditors, with intent to prefer such creditors over other creditors of the same class. After careful examination of the report, I see no occasion for disturbing any of the findings of fact of the master or the conclusions which he reached. The two requests for rulings of law demand attention. First, as to the number of creditors of the alleged bankrupt, it appears from the report that, shortly prior to the filing of the petition in these proceedings, the bankrupt paid off some twenty creditors, leaving less than twelve in number unpaid. Respecting some of these creditors it may be successfully claimed that they received a voidable preference, but it seems to be well settled that such creditors cannot be counted for the purpose of determining whether a petition may be brought by a single creditor under section 59b of the Bankruptcy Act, being Comp. St. § 9643 (Stevens v. Nave-McCord Co., 150 E. 71, 80 C. C. A. 25), at least until the creditor has surrounded his preference (In the Matter of Murphy [D. C.] 225 F. 392). Moreover, the alleged bankrupt did not comply with the provisions of section 59d, by filing with his answer a list, under oath, of all of the creditors. The master" }, { "docid": "6892659", "title": "", "text": "the master or the conclusions which he reached. The two requests for rulings of law demand attention. First, as to the number of creditors of the alleged bankrupt, it appears from the report that, shortly prior to the filing of the petition in these proceedings, the bankrupt paid off some twenty creditors, leaving less than twelve in number unpaid. Respecting some of these creditors it may be successfully claimed that they received a voidable preference, but it seems to be well settled that such creditors cannot be counted for the purpose of determining whether a petition may be brought by a single creditor under section 59b of the Bankruptcy Act, being Comp. St. § 9643 (Stevens v. Nave-McCord Co., 150 E. 71, 80 C. C. A. 25), at least until the creditor has surrounded his preference (In the Matter of Murphy [D. C.] 225 F. 392). Moreover, the alleged bankrupt did not comply with the provisions of section 59d, by filing with his answer a list, under oath, of all of the creditors. The master correctly held that the petitioner was entitled to bring this petition as a single creditor under section 59b. It further appears that the alleged bankrupt, after these proceedings were instituted, brought a suit for breach of contract against one Vaughan. A copy of the declaration was received in evidence without objection. The alleged bankrupt offered to prove that Vaughan was responsible; that a contract had been entered into between Vaughan and the alleged bankrupt; the nature of the contract, a breach of it, and that the claim was for substantially the ad damnum of $50,000 named in the writ. This evidence the master refused to receive on the question of insolvency. Apart from this alleged claim against Vaughan, the master found that the total assets amounted to nearly $20,000, and that the total liabilities approximated $50,000. It is obvious from his report that the master proceeded on the theory that the claim against Vaughan was of such a nature that it could not be considered as an asset, within the meaning of section la (15)," }, { "docid": "2370105", "title": "", "text": "an unlawful preference, which gave to the Bank of Batavia a greater percentage of its debt against Gillette, as an individual, than any other creditor. An important question in this case, however, and which was not presented to the special master, is whether the Bank of Batavia, which has accepted and retains an unlawful, preference, may petition to have the said Gillette & Prentice, from whom such unlawful preference was obtained, declared involuntary bankrupts. By section 59b of the bankrupt act it is provided that: “Three or more creditors who have provable claims against any person which amount in the aggregate, in excess of the value of securities held by them, if any, to five hundred dollars or over; or if all of the creditors of such person are less than twelve in number, then one of such creditors whose claim equals such amount may file a petition to have him adjudged a bankrupt.” It is argued with much force that the true intent of the act contemplates that where a petition is filed by three creditors, and for any reason it is claimed that one of such creditors is disqualified from uniting in that petition, that fact -must be set forth by answer, in order that the facts denied may be submitted to the special master for examination; that the answer in this case, by not denying that the petitioners have provable claims against the co-partnership assets, admits the allegation, and it is too late, after the master has made his report and all the evidence has been taken, to raise this question; and that the Bank of Batavia has a provable debt against the co-partnership assets, whatever may be said of its claim against the individual assets of Gillette. Under the act of 1867, a person who committed an act of bankruptcy was adjudged a bankrupt on the petition of one or more of his creditors, the aggregate of whose debts provable under the act amounted to at least $250. When under that act a person was adjudged a bankrupt, his assignee was empowered to recover back the" }, { "docid": "13361374", "title": "", "text": "263 U.S. 244, at page 249, 44 S.Ct. 67, 68, 68 L.Ed. 287: “We therefore conclude that where a petition for involuntary bankruptcy is sufficient on its face, alleging that the three petitioners are creditors holding provable, claims and containing all the averments essential to its maintenance, other creditors having provable claims who intervene in the proceeding and join in the petition at any time dijring its pendency before an adjudication is made, after as well as before the expiration of four months from the alleged act of bankruptcy, are to be counted at the hearing in determining whether there are three petitioning creditors qualified to maintain the petition, it being immaterial in such case whether the three qualified creditors joined in the petition originally or by intervention.” Citing In re Stein (C.C.A.) 105 F. 749; In re Bolognesi (C.C.A.) 223 F. 771, 773; In re Romanow (D.C.) 92 F. 510; In re Mammouth Lumber Co. (D.C.) 109 F. 308; In re Mackey (D.C.) 110 F. 355; In re Plymouth Cordage Co. (C.C.A.) 135 F. 1000; Stevens v. Mercantile Co. (C.C.A.) 150 F. 71; Ryan v. Hendricks (C.C.A.) 166 F. 94; First State Bank v. Haswell (C.C.A.) 174 F. 209; In re Etheridge Furniture Co. (D.C.) 92 F. 329; In re Bedingfield (D.C.) 96 F. 190; In re Gillette (D.C.) 104 F. 769; In re Vastbinder (D.C.) 126 F. 417; In re Crenshaw (D. C.) 156 F. 638. See, also, in this circuit Hibel Fur Co. v. Strongin et al. (C.C.A.) 33 F. (2d) 30, 32. We think, therefore, that the District Court erred in holding that the original petition was invalid by reason of Annie B. Gilberte being estopped from signing the petition, and that the intervening creditors could not join and make up the deficiency in the number of creditors, even though their claims were filed after the four months’ period following the appointment of a receiver in the state court. Section 59f of the Bankruptcy Act (11 U.S.C.A. § 95 (f) authorizes creditors other than the original petitioners at any time to enter their appearance and join" }, { "docid": "23422674", "title": "", "text": "his claim, he may not vote at a creditors’ meeting, and he may not obtain any advantage from his claim in the bankruptcy proceeding before he surrenders his preference. Such a preferred creditor may present or may join in a petition for an adjudication of bankruptcy. But he may not be counted for the petition unless he surrenders his-preference before the adjudication. In re Hornstein, 122 Fed. 266, 273, 277; In re Gillette (D. C.) 104 Fed. 769. Such a creditor may not be counted against the petition, nor in computing the number of creditors that must join in the petition, unless he first surrenders his preference. But, if he surrenders lus preference before the adjudication, he may be counted after the surrender. In re Miner (D. C.) 104 Fed. 520; Collier on Bankruptcy (5th Ed.) 440, 481; In re Blount (D. C.) 142 Fed. 263, 266; Leighton v. Kennedy, 64 C. C. A. 265, 267, 129 Fed. 737, 739; In re Israel, Fed. Cas. No. 7,111; Clinton v. Mayo, Fed. Cas. No. 2,899; In re Currier, Fed. Cas. No. 3,492. The decisions upon some of the questions which have been considered have not been uniform, and these conclusions have not been reached without a perusal of the opinions in the cases of In re Herzikopf (D. C.) 118 Fed. 101; In re Burlington Malting Co. (D. C.) 109 Fed. 777, 779; In re Romanow (D. C.) 92 Fed. 510; In re Rogers’ Milling Co. (D. C.) 102 Fed. 687; In re Schenkein (D. C.) 113 Fed. 421, 427; In re Fishblate Clothing Co. (D. C.) 125 Fed. 986; Brandenburg on Bankruptcy (3d Ed.) 922, 923. In the case under consideration, all the creditors except three had received voidable preferences which they had not offered to surrender. They were not entitled to be counted,“therefore, in computing the number of creditors for the purpose of determining how many must join in the petition. The petition of Martha Stevens disclosed the fact that there were less than 12 creditors who could be lawfully reckoned for this purpose, and it stated facts sufficient" }, { "docid": "2370109", "title": "", "text": "may keep a preference which he receives, but he is not permitted to share in the distribution of the bankrupt’s estate unless the preference received by such creditor is surrendered. Electric Co. v. Worden, 39 C. C. A. 582, 99 Fed. 400, 2 Nat. Bankr. N. 434. But compare In re Smoke (D. C.) 104 Fed. 289, 4 Am. Bankr. R. 434; In re Alexander (D. C.) 102 Fed. 464, 4 Am. Bankr. R. 376; and In re Piper, 2 Nat. Bankr. N. 7. The fact, therefore, that three or more creditors who have provable claims may tile a petition to have a person adjudged a bankrupt is strictly a jurisdictional one. The authorities under the act of 1867 bear out this contention. In Re Mason (D. C.) 99 Fed. 256, 2 N. B. R. 425, the court said: “Want of jurisdiction over the subject-matter may be taken advantage of at any time, and it may be collaterally attacked; but, where the objection goes merely to want of jurisdiction of the person or thing, there may be a waiver of the objection or restriction as to the manner and time of making it.” And in Carriage Co. v. Stengel, 37 C. C. A. 210, 95 Fed. 637, 2 Am. Bankr. R. 883, Judge Taft said: “Where petition in an involuntary proceeding is answered without objection to its form, by such answer the parties have waived all formal and modal defects in the petition which do not reach to the jurisdiction of the court.” The petitioning creditors in involuntary proceedings must come within the provisions of section 59b of the bankrupt act. It is necessary that three creditors unite, and show that their claims, in excess of the value of securities held by them, amount to over $500. If this is. not done, jurisdiction is not conferred on the court. In re Rogers Milling Co. (D. C.) 102 Fed. 687, 2 Nat. Bankr. N. 978, is a case analogous to the one at bar. The Rogers Milling Company within four months next before the filing of the petition gave a note" }, { "docid": "1011569", "title": "", "text": "preferred creditors until they surrender them, which the act contains, the general scope of the law and all its provisions read and considered together, and the duty to give to it a rational and sensible interpretation, have forced our minds to the conclusion that it was the intention of Congress that creditors who hold voidable preferences should not be counted either for or against the petition for an adjudication in bankruptcy until they surrender their preferences. This intention, thus deduced, must therefore prevail over the technical rules of construction which counsel for the appellees invoke. The result is: A creditor who holds a voidable preference has a provable claim in the sense that he may make and file the formal proof thereof specified by the bankruptcy law; but he may not procure an allowance of his claim, he may not vote at a creditors’ meeting, and he may not obtain any advantage from his claim in the bankruptcy proceeding before he surrenders his preference. “Such a preferred creditor may present or may join in a petition for an adjudication of bankruptcy. But he may not be counted for the petition unless he surrenders his preference before the adjudication. In re Hornstein (D. C.) 122 F. 206, 273, 277; In re Gillette (D. C.) 104 F. 769.” The question, therefore, becomes whether the petitioners, or any of them, have received voidable preferences, there being only the minimum number of petitioning creditors, three. The preferences alleged in the answer are that on May 2, 1927, Maeklem paid to one cf the individual petitioners $59 on account, and on July 11, 1927, to the other individual petitioner $133.59 on account; these petitioners knowing Maeklem was then insolvent. As to the third petitioner, the Havre de Grace' Banking & Trust Company, the claim is that it was prefeired by the payment on July 16,1927, of a note for $206.20, dated May 6, 1926, and also by payment of interest about the same time on another note which it held for $10,000. The court does not think that any of these payments can he called" }, { "docid": "8093989", "title": "", "text": "Company, was challenged. In the answer filed by the bankrupt, which denied insolvency and that it had given a preference, it was also denied that the Pittsburgh Company had a provable claim against it. Then on the day on which the case was heard before the bankruptcy court, and at the beginning of the hearing, and before other proceedings had been taken, the bankrupt appeared by its counsel and presented, to the court resolutions passed by its directors, and approved in writing by all of its stockholders, authorizing its counsel to withdraw its answer and admit all the allegations contained in the original petition for creditors. This admission of the bankrupt of the truth of “all \"the allegations” contained in the original petition o,f the creditors included the allegation that the bankrupt was indebted to the three petitioning creditors in the amount they claimed. But there still remained the answer of the objecting creditors, who denied that the bankrupt was indebted to the Pittsburgh & West Virginia Coal Company, one of the three original petitioning creditors. If the Pittsburgh & West Virginia Coal Company was not a creditor at the time the original petition of the creditors was filed, the petition, while correct in form, was insufficient in law. Por Bankruptcy Act, §-59b, provides that three or more creditors having provable claims which amount in the aggregate in excess of securities held by them, if any, to $500 or over, may file a petition to have the debtor adjudged a bankrupt. But, if all the creditors are less than 12 in number, any one of them, whose claim equals -$500, may file a petition to have him adjudged a bankrupt. This left as the sole challenge the provability of the claim of the third creditor, the Pittsburgh Company, the answer filed by the two opposing creditors, the Canute Steamship Company, Limited, a British corporation, and the Compania Naviera Sota y Aznar, a Spanish corporation. That answer denied' (1) that the Diamond Puel Company was insolvent; (2) that it had given a preference; (3) that the Pittsburgh Company had a provable" }, { "docid": "23422665", "title": "", "text": "sought was that which Martha Stevens prayed, an adjudication of Stevens a bankrupt, and the refusal of the court to permit them to join in her petition and the dismissal of the latter were embodied in the same order. The three petitioners were thus jointly interested in, and aggrieved by, this final decision which refused to adjudge Stevens a bankrupt, and they lawfully challenged it by their joint appeal. The motion to dismiss the appeal is denied. The debtor, Stevens, was insolvent and had 48 creditors. He conveyed all his property to a trustee for the use of 47 of these creditors.with the intent that they hould receive therefrom a payment of part of their claims, and that the 48th creditor, his wife, should receive nothing. The 47 creditors and their trustee, with knowledge that this preference was intended, accepted the transfer and received therefrom payments of 50 per cent, of their claims. Within four months after the assignment the 48th creditor filed her petition for an adjudication of .Stevens a bankrupt and set forth the foregoing facts. If the 47 creditors who had received the preference ought not to be counted against the petitioner, there were less than 12 other creditors, her petition stated facts sufficient to warrant the adjudication she sought, and, whether Fowler and Deardorff should have been permitted to join her in her petition or not, its dismissal was error. Since a decision of this question in favor of the appellants will dis-' pose of this case and render all other issues immaterial, it will be first considered. The argument, in support of the contention that creditors who have secured a voidable preference must be counted in computing the number of creditors that must join in the petition, is that such parties have provable claims, and that every one who has a provable claim, and who is not excluded by section 59e (30 Stat. 562, 3 U. S. Comp. St. 1901, p. 3445), is a countable creditor under the bankruptcy law of 1898. It is that section 59b provides that “three or more creditors who have" }, { "docid": "1011566", "title": "", "text": "COLEMAN, District Judge. This case arises upon an involuntary petition for an adjudication of bankruptcy, and an answer thereto which asserts that the individual sought to be so adjudicated is exempt by virtue of section 4b of the Bankruptcy Act (11 USCA § 22), because a farmer. The petition was filed August 22, 1927, against John W. Macklem by three creditors, the Havre de Grace Banking & Trust Company and two individuals. It alleges that Macklem is a eanner of com and tomatoes, is insolvent, and within four months preceding the filing of the petition, namely, on August 9, 1927, committed an act of bankruptcy, in that he then made a deed of trust of all his property for the benefit of creditors. The petition is otherwise sufficient on its face. Macklem, in his answer, denies that he is a eanner, and alleges, first, that he is a person chiefly engaged in farming or tilling of the soil, and thus exempt; second, that the petitioning creditors have been preferred within four months of the filing of the petition, and are therefore disqualified; and, third, that one of these creditors, the Havre de Grace Banking & Trust Company, is estopped from filing the petition, because it endeavored to induce the respondent to make a general assignment to it, or its nominee, for the benefit of his creditors. Taking np first the question of estoppel, it seems clear that this is entirely without merit. There is evidence that the secretary of the Havre de Grace Banking & Trust Company, together with the president of another creditor bank, proposed to respondent that ho might best get hack “on his feet” by appointing them a committee, temporarily, to mange' his affairs. But there was nothing improper in this, or nothing inconsistent with the trust company’s present position. As to the matter of disqualification of the three petitioning- creditors, Bankruptcy Act, § 59b (11 USCA § 95), provides that “three or more creditors who bjavo provable claims against any person * * may file a petition to have him adjudged a bankrupt.” Under some of" }, { "docid": "1011567", "title": "", "text": "of the petition, and are therefore disqualified; and, third, that one of these creditors, the Havre de Grace Banking & Trust Company, is estopped from filing the petition, because it endeavored to induce the respondent to make a general assignment to it, or its nominee, for the benefit of his creditors. Taking np first the question of estoppel, it seems clear that this is entirely without merit. There is evidence that the secretary of the Havre de Grace Banking & Trust Company, together with the president of another creditor bank, proposed to respondent that ho might best get hack “on his feet” by appointing them a committee, temporarily, to mange' his affairs. But there was nothing improper in this, or nothing inconsistent with the trust company’s present position. As to the matter of disqualification of the three petitioning- creditors, Bankruptcy Act, § 59b (11 USCA § 95), provides that “three or more creditors who bjavo provable claims against any person * * may file a petition to have him adjudged a bankrupt.” Under some of the decisions, “provable” is held to mean any claim which might be proved, whether preferred or not; while other cases hold that it is the equivalent of “allowable.” See In re Standard Detroit Tractor Co. (D. C.) 275 F. 952, 954. But ibe weight of authority is that a creditor, who has received a voidable preference, may still join in the petition, though he may not be counted as one of the required three petitioning creditors, unless he surrender's his preference. Stevens v. Nave-McCord Co. (C. C. A.) 150 F. 71; In re Gillette (D. C.) 104 F. 769; Canute S. S. Co. v. Pittsburg Coal Co., 263 U. S. 244, 44 S. Ct. 67, 68 L. Ed. 287; In re Cooper (D. C.) 12 F.(2d) 485. As was said in the Stevens Case, page 76: “The evil of preferences which the bankrupt law was enacted to remove, the remedy of an equal distribution of the property of the bankrupt which it was passed to provide, the prohibition of the use of their claims by" }, { "docid": "15072328", "title": "", "text": "given, shall not be allowed unless such creditors shall surrender such preferences, conveyances, transfers, assignments, or incumbrances.” There is no ambiguity in the language of this subdivision. The referee in bankruptcy has full authority to inquire into defenses of claims which are based upon preferences or transfers. We have held that the court has power to require the attachment lien to, be released before an adjudication is entered, and that a creditor might prove his claim providing he surrenders his liens. In the Matter of Automatic Typewriter Company (C. C. A.) 271 F. 2; In re Stevens v. Nave-McCord, 150 F. 71. The referee in bankruptcy is not a separate court, nor endowed with any independent judicial authority. He is merely an officer of the court of bankruptcy, having no power except as conferred by the order of reference. His judicial functions are always subject to the review of the bankruptcy court. He has no jurisdiction over a plenary suit in equity brought by the trustee in bankruptcy against a third party under sec tion 70e (Comp. St. § 9654) when the property is not in the custody or control of the court of bankruptcy. Weidhorn v. Levy, 253 U. S. 268, 40 S. Ct. 534, 64 L. Ed. 898; Galbraith v. Vallely, 256 U. S. 46, 41 S. Ct. 415, 65 L. Ed. 823. Still where the claimant has submitted her claim to the jurisdiction of the bankruptcy court, as here, by presenting her proof of debt for $15,000, she must be deemed to have consented to the jurisdiction of the court to decide any defenses that may be lawfully interposed. The Court of Appeals of the Ninth Circuit has considered this and announced that the claims of creditors who have received preferences should not be allowed unless the creditors surrender their preferences holding that there was no ambiguity. In re Fixen & Co., 102 F. 295, 42 C. C. A. 354, 50 L. R. A. 605. There it was said: “When a creditor presents a bona fide claim against the bankrupt estate, the question to be determined is:" }, { "docid": "6036286", "title": "", "text": "GODDARD, District Judge. This is a motion to dismiss a petition in bankruptcy filed against Morton A. jSmith by the receiver of the alleged bankrupt, Produce Purveyors, Inc., who was appointed in an involuntary proceeding, and which has not yet been adjudicated. The ground urged for permitting the receiver of the Produce Purveyors, Inc., to file the petition in bankruptcy against Smith, is the necessity of conserving his assets for the benefit of Produce Purveyors, Inc., of which Smith was an officer, and to whom it is alleged Smith is indebted. Section 59b of the Bankruptcy Act (Act July 1, 1898, c. 541; 11 USCA § 95(b) provides : “Three or more creditors who have provable claims against any person which amount in the aggregate, in excess of the value of securities held by them, if any, to $500 or over; or if all of the creditors of such person are less than twelve in number, then one of such creditors whose claim equals such amount may file a petition to have him adjudged a bankrupt.” In the case at bar, it appears that there are less than twelve creditors, so that one “creditor” may file the petition. However, a creditor under the Bankruptcy Act of 1898, 30 Stat. 565, § 1(9), 11 USCA § 1(9), is defined: “(9) ‘Creditor’ shall include any one who owns a demand or claim provable in bankruptcy, and may include his duly authorized agent, attorney, or proxy.” A receiver in bankruptcy is not the owner of the claim, and certainly not before adjudication could he he regarded as the agent, attorney, or proxy of the alleged bankrupt. The receiver takes no title to the property; he is merely a custodian. Upon the election of the trustee, the bankrupt’s title vests in the trustee as of the date of adjudication. In re Zotti (C. C. A.) 186 F. 84, Ann. Cas. 1914A, 240; In re Michaelis & Lindeman (D. C.) 196 F. 718; In re Larkkey (D. C.) 214 F. 867. In Boonville National Bank v. Blakey, 107 F. 891, involving the question whether a" }, { "docid": "23422666", "title": "", "text": "the foregoing facts. If the 47 creditors who had received the preference ought not to be counted against the petitioner, there were less than 12 other creditors, her petition stated facts sufficient to warrant the adjudication she sought, and, whether Fowler and Deardorff should have been permitted to join her in her petition or not, its dismissal was error. Since a decision of this question in favor of the appellants will dis-' pose of this case and render all other issues immaterial, it will be first considered. The argument, in support of the contention that creditors who have secured a voidable preference must be counted in computing the number of creditors that must join in the petition, is that such parties have provable claims, and that every one who has a provable claim, and who is not excluded by section 59e (30 Stat. 562, 3 U. S. Comp. St. 1901, p. 3445), is a countable creditor under the bankruptcy law of 1898. It is that section 59b provides that “three or more creditors who have provable claims against any person * * * or if all of the creditors of such person are less than twelve in number, then one of such creditors * * * may file a petition to have him adjudged a bankrupt”; that section 1, subd. 9 (30 Stat. 544 [U. S. Comp. St. 1901, p. 3419]), declares that ‘creditor’ shall .include any one who owns a demand or claim provable in bankruptcy”; that section 59f authorizes “creditors other than original petitioners” to be heard in opposition to the prayer of the petition”; that section 18b (30 Stat. 551 [U. S. Comp. St. 1901, p. 3429]) allows “the btCiiklupt or any creditor” to appear and plead to the petition; that section 57d (30 Stat. 560 [U. S. Comp. St. 1901, p. 3443]) provides that “claims which have been duly proved shall be allowed * * * unless objection to their allowance shall be made’ by parties in interest * * * ”; that section 57g provides that “the claims of creditors who have received preferences shall" }, { "docid": "2370108", "title": "", "text": "No. 11,522, it was held that: “A petition in involuntary bankruptcy which states the giving to the petitioner of an unlawful preference in respect to a debt, but does not surrender the preference, will be dismissed.” Section 59b and section 60 of the act of 1898 are similar to the provisions of the act of 1867, in the point under discussion, except that: uuder the act of 1898 three or more creditors who have provable claims are required to petition to have a person adjudged an involuntary bankrupt, while under the former act one or more persons were required for this purpose. By the amendment of 1874 jurisdiction is given in involuntary proceedings only in cases where a fourth in number and a third in value of the creditors unite in the petition. By section 57g of the present act it is provided, as we have seen, that \"the claims of creditors who have received preferences shall not be allowed unless such creditors shall surrender their preferences”; and it is held that an innocent creditor may keep a preference which he receives, but he is not permitted to share in the distribution of the bankrupt’s estate unless the preference received by such creditor is surrendered. Electric Co. v. Worden, 39 C. C. A. 582, 99 Fed. 400, 2 Nat. Bankr. N. 434. But compare In re Smoke (D. C.) 104 Fed. 289, 4 Am. Bankr. R. 434; In re Alexander (D. C.) 102 Fed. 464, 4 Am. Bankr. R. 376; and In re Piper, 2 Nat. Bankr. N. 7. The fact, therefore, that three or more creditors who have provable claims may tile a petition to have a person adjudged a bankrupt is strictly a jurisdictional one. The authorities under the act of 1867 bear out this contention. In Re Mason (D. C.) 99 Fed. 256, 2 N. B. R. 425, the court said: “Want of jurisdiction over the subject-matter may be taken advantage of at any time, and it may be collaterally attacked; but, where the objection goes merely to want of jurisdiction of the person or thing, there" } ]

[ { "docid": "3325815", "title": "", "text": "leading case in propounding the view is Williams v. New Orleans Steamship Association, 341 F.Supp. 613 (E.D.La. 1972) . In Williams, the District of Louisiana embraced an EEOC opinion to the effect that establishments which are part of an integrated enterprise may be treated as a single employer. The Williams court does not stand alone in this view. Taylor v. Armco Steel Corporation, 373 F.Supp. 885 (S.C.Tex.1973); United States v. Local 638, Enterprise Ass’n., 360 F.Supp. 979 (S.D.N.Y. 1973) . The most appropriate and definitive method for a determination as to whether a consolidation of separate entities is warranted involves a utilization of the National Labor Relations Board’s “single employer” standards. Baker v. Stuart Broadcasting Company, 560 F.2d 389 (8th Cir. 1977). This quadripartite test entails proof of: (1) interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership or financial control. Radio Union v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965). These standards are as appropriate for issues under Title VII as for problems under the Labor Management Relations Act, 1947, 29 U.S.C. §§ 141 et seq. The second basis upon which to establish the responsibility of Upjohn for acts of its subsidiary LPS involves issues of agency. As provided by the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e(b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day . . and any agent of such a person. Title VII of the Civil Rights Act of 1964 outlaws discrimination by an “employer” on the basis of an individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(l). Under these sections, if it may be shown that LPS operated as an agent of Upjohn, the liability for the discriminatory practices becomes the responsibility of Upjohn as “employer” and LPS as “agent”. The existence of the agency relationship may be inferred from the facts of the two parties’ interaction. A denial of the agency relation does not forestall the" } ]

[ { "docid": "22143388", "title": "", "text": ". The determination that an employer who employed fifteen employees should be subject to the requirements of 42 U.S.C. § 2000e was a compromise between the proponents and opponents of the original bill that was introduced in the House and Senate. As originally proposed, both the House and Senate version of the bill set the minimum number of employees at eight. See H.R. 1746, 1st Sess. 117 Cong.Rec. 212, Reprinted in Subcommittee on Labor-Senate Committee on Labor and Public Welfare Legislative History of the Equal Employment Opportunity Act of 1972 (Comm. Print 1972) (hereinafter Legislative History) at 1; S. 2515 Section 2(b) introduced September 14, 1971, 92d Cong., 1st Sess. 117 Cong.Rec. 31702, Reprinted in Legislative History at 158. The Senators who spoke against the eight-employee provision echoed Senator Williams’s concerns as to the antidiscrimination principle. See Remarks of Senator Allen, 118 Cong.Rec. 2386 (1972), Legislative History at 1269; Remarks of Senator Fannin, 118 Cong.Rec. 2409 (1972), Legislative History at 1297; see also Remarks of Senator Cotton, 118 Cong.Rec. 2391 (1972), Legislative History at 1282. However, the opponents would have drawn the balance on the side of the small business, under twenty-five employees. These businesses, often family run, would likely hire the friends and relatives or those of the same ethnicity of the owner. See Remarks of Senator Fannin, 118 Cong.Rec. 2409-10 (1972), Legislative History at 1298-1300, Remarks of Senator Ervin, 118 Cong.Rec. 3171 (1972), Legislative History at 1375. It was argued that small rural businesses were unable to cope with centralized regulation by a bureaucracy such as the EEOC. Remarks of Senator Allen, 118 Cong.Rec. 2389-90 (1972), Legislative History at 1277-81. . The district courts that have adopted the four-part test have increased substantially. See, e.g., Hague v. The Spencer Turbine Co., 28 FEP Cases 450 (M.D.N.C.1982); Odriozola v. Superior Cosmetics Distributors, Inc., 531 F.Supp. 1070 (D.P.R.1982); EEOC v. Wooster Brush Co., 523 F.Supp. 1256 (N.D.Ohio 1981); Fike v. Gold Kist, Inc., 514 F.Supp. 722 (N.D. Ala. 1981); Copley v. Morality in Media, Inc., 25 Empl.Prac.Dec. ¶ 31,570 (S.D.N.Y.1981); Ratcliffe v. Insurance Co. of North Am., 482 F.Supp. 759" }, { "docid": "22143386", "title": "", "text": "will ultimately prevail on the jurisdictional issues. Rather, we merely have set out the applicable legal principles needed to assess whether the plaintiffs have met the jurisdictional requirement of the Act. Since the district court had not originally employed this analysis, the judgment below is REVERSED and the case remanded for additional proceedings not inconsistent with this opinion. The judgment below is REVERSED and REMANDED for further proceedings not inconsistent with this opinion. . The district court opinion is reported at 498 F.Supp. 858. . At the time Hassell v. Harmon Foods, Inc., 454 F.2d 199 (6th Cir. 1972), was decided, the Civil Rights Act of 1964 required an employer to have a minimum of twenty-five employees before being subject to the Act. In 1972, the Act was amended to provide that the employment of fifteen employees subjected an employer to the requirements under the Act. See 42 U.S.C. § 2000e(b); see also footnote 3, ante, and accompanying text. . Following our decision in Hassell, several courts articulated formulations to determine when a parent-subsidiary relationship is not a “normal one” in assessing whether the two will be considered as a single employer for Title VII purposes. Among these cases is Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir. 1977). In Baker, the Eighth Circuit adopted the test used by the National Labor Relations Board to determine the single employer question for purposes of Section 2(2) of the National Labor Relations Act, 29 U.S.C. § 152(2). The court in Baker noted our decision as being in conflict with courts that have embraced the NLRB formulation. See also EEOC v. Cuzzens of Georgia, Inc., 15 FEP Cases 1807 (N.D.Ga.1977); EEOC v. Upjohn Corp., 445 F.Supp. 635 (N.D.Ga.1977). Yet district courts of this Circuit have concluded that the NLRB test is not inconsistent with Hassell, a position that amicus curiae takes in this case. See EEOC v. The Wooster Brush Co., 523 F.Supp. 1256 (N.D.Ohio 1981) (Contie, J.) and the district court opinion herein, 498 F.Supp. at 862. See also Mas Marques v. Digital Equipment Corp., 637 F.2d 24 (1st Cir.1980)." }, { "docid": "7194815", "title": "", "text": "court followed for entering its Finding of Fact and Conclusions of Law. II The district court determined that it lacked subject matter jurisdiction over appellant’s Title VII claims because IBEW was not appellant’s employer and Local 18 was not an employer within the terms of 42 U.S.C. § 2000e(b). Section 2000e(b) states: The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such a person .... 42 U.S.C. § 2000e(b). It is undisputed that Local 18 employed fewer than fifteen people during the time of appellant’s tenure there. There is no evidence that appellant was employed by the IBEW, which does have a number of employees exceeding the jurisdictional minimum. These facts formed the basis of the district court’s dismissal of appellant’s Title VII claims against Local 18 and the IBEW. Appellant contends, however, that the entity that practiced discrimination against her, for purposes of her Title VII claims, was an “employer” under section 2000e(b) as either a single employing entity composed of Local 18 and the IBEW or Local 18 acting as agent of the IBEW. We disagree. In Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir.1977), the Eighth Circuit applied a four-prong test, used by the NLRB in labor cases, to determine whether two employing entities constitute a single employer for purposes of jurisdiction under Title VII. [T]he standard to be employed to determine whether consolidation of separate [employing] entities is proper are the standards promulgated by the National Labor Relations Board: (1) inter-relation of operations, (2) common management, (3) centralized control of labor relations; and (4) common ownership or financial control. Id. at 392; accord York v. Tennessee Crushed Stone Assoc., 684 F.2d 360, 362 (6th Cir.1982); Mas Marques v. Digital Equipment Corp., 637 F.2d 24, 27 (1st Cir.1980); Williams v. Evangelical Retirement Homes of Greater St. Louis, 594 F.2d 701, 703 (8th Cir.1979). Under this standard, appellees argue that there is no basis for considering Local 18 and the IBEW to be a single employer. Although Local 18 is chartered by" }, { "docid": "22143362", "title": "", "text": "Corporation as a ‘sham’ entity in order to consolidate it with its parent corporations to satisfy the Title VII prerequisite of fifteen employees.” 498 F.Supp. at 862. The court reasoned that under Hassell v. Harmon Foods, Inc., supra, the formal corporate relations between Syntax and its parent were regular and unexceptional, and thus the separate corporate entities would be respected. Upon finding that the parent corporation had nothing more than a possible “awareness” of the identity, positions, and salaries of Syntax employees, the district court opined that there was no “centralized control of labor relations” as required under the four-part test articulated in Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir.1977). As to the manufacturer’s representatives, the district court adopted the general common law rule for purposes of determining whether an individual is an employee. Under this standard, the court examined the purported control over the means, manner and details of the work performed. The lower court found that evidence of commission payments for accomplished results was an insufficient basis upon which to determine whether an employment relationship existed between Syntax and its manufacturer’s representatives under the common law test. The court concluded that the manufacturer’s representatives were more akin to independent contractors, than to employees. Thus, upon considering the total number of part-time and full-time persons employed by Syntax, the court determined that the minimum jurisdictional requirement of fifteen employees had not been met; therefore, this claim was dismissed for lack of subject matter jurisdiction. The district court also dismissed plaintiffs’ Fourteenth Amendment claim since no state action was alleged. No assignment of error is premised upon this basis of dismissal; accordingly, this portion of the lower court’s judgment is AFFIRMED. We also affirm the lower court’s dismissal of Stackpole since it was not charged in the administrative action before the EEOC. Accord Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974); McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973). II. STANDARD OF REVIEW The lower court’s jurisdictional ruling was based upon" }, { "docid": "23514462", "title": "", "text": "benefits. It points to the fact that women and men working at the Wooster Brush Company receive the same pay for doing the same work, that they are entitled to the same unpaid leave of absence for disability, which does include pregnancy related disabilities, and that men and women are equally eligible for group hospital, surgical and life insurance benefits including supplemental Medicare insurance. The EEOC did not argue that the Association was originally formed for the benefit of the Company or at the Company’s direction; it is clear that the Association was created by the employees themselves acting independently of the Company. Likewise since the Association itself has no employees whatsoever, it cannot fall within the definition of an employer under 42 U.S.C. § 2000e(b), at least when independently considered. A. The Liability of the Association The trial judge pointed out that in determining whether two entities may be liable as a single employer under Title VII two basic approaches have been taken. The first, characterized by Baker v. Stuart Broadcasting Company, 560 F.2d 389 (8th Cir.1977), rests upon a finding that the two entities constitute a single or joint employer. The second rests on a finding that one entity, here the Association, is merely the agent or instrumentality of the other, an approach employed in EEOC v. ISC Financial Gorp., 14 Empl.Prac.Dec. ¶ 7729 (W.D.Mo.1977). See also Linskey v. Heidelberg Eastern, Inc., 470 F.Supp. 1181, 1184 (E.D.N.Y.1979); EEOC v. Upjohn Corp., 445 F.Supp. 635, 639 (N.D.Ga.1977). In examining those cases the court concluded that although an agency relationship did not exist, the Company and the Association could be considered a joint employer under Baker v. Stuart Broadcasting Company. The Court in Baker noted that there are four criteria for determining whether a consolidation of separate entities is proper for application of the standards promulgated by the National Labor Relations Board: (1) interrelations of operation; (2) common management; (3) centralized control of labor relations; and (4) common ownership and financial control. 560 F.2d at 392. The court concluded that the liberal treatment accorded the interpretation of Title VII warranted" }, { "docid": "22143371", "title": "", "text": "subsidiary’s conduct as that of both. See Hassell v. Harmon Foods, Inc., 454 F.2d at 200; see also Watson v. Gulf & Western Industries, 650 F.2d 990, 993 (9th Cir.1981) (Absent special circumstances, parent is not responsible for subsidiary’s Title VII violations). For guidance in testing the degree of interrelationship, we look to the four-part test formulated by the NLRB and approved by the Supreme Court in Radio Union v. Broadcast Service, 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965) (per curiam). Accord Mas Marques v. Digital Equipment Corp., 637 F.2d 24, 27 (1st Cir. 1980); Williams v. Evangelical Retirement Homes of St. Louis, 594 F.2d 701, 703 (8th Cir.1979); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 392 (8th Cir.1977); see also EEOC v. American National Bank, 652 F.2d 1176, 1185 (4th Cir.1981), cert, denied, — U.S. —, 103 S.Ct. 235, 74 L.Ed.2d 186; cf. Dumas v. Town of Mt. Vernon, 612 F.2d 974, 980 n. 9 (5th Cir.1980). This Circuit has also adopted this test which assesses the degree of (1) interrelated operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership. See, e.g. NLRB v. Borg Warner Corp., 663 F.2d 666 (6th Cir.) cert. denied, 457 U.S. 1105, 102 S.Ct. 2903, 73 L.Ed.2d 1313 (1981). While each factor is indicative of interrelation and while control over the elements of labor relations is a central concern, see Sheeran v. American Commercial Lines, 683 F.2d 970, 978 (6th Cir.1982), the presence of any single factor in the Title VII context is not conclusive. All four criteria need not be present in all cases and, even when no evidence of common control of labor relations policy is presented, the circumstances may be such that the Title VII single-employer doctrine is applicable. See Metropolitan Detroit Bricklayers v. J.E. Hoetger & Co., 672 F.2d 580, 584 (6th Cir.1982); Local No. 627, Operating Engineers v. NLRB, 518 F.2d 1040, 1045-46 (D.C.Cir.1975), aff’d in relevant part sub nom. South Prairie Construction Co. v. Local 627, Operating Engineers, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976); see" }, { "docid": "4904900", "title": "", "text": "in determining single employer status. Cases treating two separate corporate entities as a single employer have placed heavy emphasis on the existence of common directors and officers. Baker v. Stuart Broadcasting Co., 505 F.2d 181 (8th Cir. 1977); Ratcliffe v. Insurance Company of North America, 482 F.Supp. 759 (E.D.Pa.1980); Dempsey v. Shoe Show, Inc., 19 FEP 1557 (M.D.N.C.1978); McLendon v. Continental Trailways, Inc., 18 FEP 1698 (N.D.Tex.1978); Hill v. Singing Hills Funeral Home, 77 F.R.D. 746, 748-49 (N.D.Texas 1978) . Here, in contrast, it is undisputed that Farmers Mutual and Gold Kist have separate boards of directors and separate corporate officers and that there are no common directors or officers. In Western Union Corp., 224 NLRB 274 (1976), aff’d, 571 F.2d 665 (D.C.Cir.1978), there was some overlap of officials between Western Union and its five subsidiaries, but the Board nevertheless refused to find common management. 3. No Centralized Control of Labor Relations: Of the four criteria applied in determining single-employer status, the most critical is the degree to which control of labor relations is centralized. EEOC v. Cuzzens of Georgia, 15 FEP 1807 (N.D.Ga.1977), rev’d on other grounds, 608 F.2d 1062 (5th Cir. 1979); Western Union Corp., 224 NLRB 274 (1976), aff’d, 571 F.2d 665 (D.C.Cir.1978); Woodford v. Kinney Shoe Corp., 369 F.Supp. 911 (N.D.Ga.1973); Ratcliffe v. Insurance Company of North America, 482 F.Supp. 759 (E.D.Pa.1980); EEOC v. Sage Realty Co., 23 EPD ¶ 31,046 (S.D.N.Y.1980); McLendon v. Continental Trailways, Inc., 18 FEP 1698 (N.D.Tex.1978). Here it is undisputed that all Farmers Mutual employees were hired by its general manager, without any involvement by anyone with Gold Kist. There is evidence that there was a contractual agreement which gave Gold Kist certain rights of control, which were not exercised. It is well settled that the “control” required to meet the test, of centralized control of labor relations is not potential control, but rather actual and active control of day-to-day labor practices. The evidence in this case does not show actual and active control of day-to-day labor practices. Even when there is a considerable amount of control present, if it does" }, { "docid": "23478769", "title": "", "text": "in West Germany. The district court granted summary judgment to both defendants on the grounds that Digital Corp. did not exercise sufficient control over Digital GmbH to be liable for its alleged discrimination and that there was no personal jurisdiction over Digital GmbH. We merely elaborate on the district court’s well-reasoned opinion, which is reported at 490 F.Supp. 56 (D.Mass.1980). With respect to Digital Corp., the district court correctly determined that the affidavits submitted in support of summary judgment negate its liability. Although Mas Marques alleged in his complaint that Digital Corp. is “fully responsible for [Digital GmbH’s] general policy of employment discrimination,” the defendants’ affidavits establish that Digital GmbH personnel policies, advertising, and decisions are formulated without the involvement of Digital Corp. Moreover, the affidavits depict a genuine parent-subsidiary relationship in which there are separate corporate structures, facilities, work forces, business records, bank accounts, tax returns, financial statements, budgets and corporate reports. Although Digital GmbH does purchase fifty percent of its inventory of computers and computer components from Digital Corp. and occasionally contracts with Digital Corp. for accounting or bookkeeping serv ices, the affidavits assert that Digital Corp. does not control Digital GmbH’s sales goals or marketing strategies, and sales catalogues and advertising are done separately. On the basis of the defendants’ affidavits, there was no recognized theory upon which Digital Corp. could be held responsible under Title VII for the acts of Digital GmbH. The two companies would not, in our opinion, be a single enterprise or employer under the test developed by the National Labor Relations Board and applied by some courts in Title VII cases. E. g., Radio and Television Broadcast Technicians Local 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965) (considering (1) interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 392 (8th Cir. 1977); Linskey v. Heidelberg Eastern, Inc., 470 F.Supp. 1181, 1183-84 (E.D.N.Y.1979); EEOC v. Upjohn Corp., 445 F.Supp. 635, 638 (N.D.Ga.1977). Nor would Digital Corp. be" }, { "docid": "22222785", "title": "", "text": "York v. Tennessee Crushed Stone Ass’n, 684 F.2d 360, 362 (6th Cir.1982); Marshall v. Arlene Knitwear, Inc., 454 F.Supp. 715 (E.D.N.Y.1978), aff’d in part, rev’d in part and remanded, 608 F.2d 1369 (2d Cir.1979). . Baker v. Stuart Broadcasting Co., 560 F.2d 389, 391-92 (8th Cir.1977); Fike v. Gold Kist, Inc., 514 F.Supp. 722, 725-28 (N.D.Ala.1981); Carter v. Shop Rite Foods, Inc., 470 F.Supp. 1150, 1160 (N.D.Tex.1979); EEOC v. Upjohn Corp., 445 F.Supp. 635, 638-39 (N.D.Ga.1977); Williams v. New Orleans Steamship Ass’n, 341 F.Supp. 613 (E.D.La.1972), aff’d in part, rev’d in part on other grounds and remanded, 673 F.2d 742 (5th Cir.1982). These four factors were first adopted by the Supreme Court for application in the area of labor relations in Radio Union v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 257, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965). Although we declined to apply the integrated enterprise standard in Dumas v. Town of Mt. Vernon, 612 F.2d 974, 979 n. 9 (5th Cir.1980), that case is readily distinguishable on its facts. Plaintiffs in Dumas sought under the four-part standard to integrate the Town of Mt. Vernon with either the county, or the state. As articulated, the standard is not readily applicable to governmental subdivisions, for it was “developed by the National Labor Relations Board to determine whether consolidation of separate private corporations is proper in determining the relevant employer for purposes of enforcing the National Labor Relations Act.” Owens v. Rush, 636 F.2d 283, 286 n. 2 (10th Cir.1980) (emphasis in original). . See note 3 supra & accompanying text. . See footnote 6, supra. See also Fisher v. Procter & Gamble Mfg. Co., 613 F.2d 527, 540-42 (5th Cir.1980), in which we held that the district court did not err in admitting evidence of past discriminatory acts in Title VII class actions challenging broad, established practices and policies. . Cf. EEOC v. Packard Electric Division, General Motors Corporation, 569 F.2d 315 (5th Cir. 1978), in which we found no clear error in the district court’s refusal to fully enforce broad EEOC investigative subpoenas of facility-wide “workforce break-outs.”" }, { "docid": "7652589", "title": "", "text": "The primary test whether separate entities such as the Library Board and the City of Fairhope are joint employers is whether the entities jointly exercise “indicia of control” over the employee’s employment. See EEOC Compliance Manual § 201(d), citing Boire v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964). “Indicia of control” has been defined by a leading treatise as: the authority to hire, transfer, promote, discipline or discharge; the authority to establish work schedules or direct work assignments; the obligation to pay or the duty to train the charging party. Employment Discrimination Law at 848. Under these factors, the City of Fairhope possessed no indicia of control vis-a-vis Oaks; only the Library Board exercised such control. Indeed, Alabama law vests “full power and authority” over such matters in the Library Board. See Code of Ala. 1975, § 11-90-3. 15. In Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir. 1977), the court adopted the federal labor law doctrine on joint employer status in resolving a joint employer issue under Title VII. The court adopted the four factors promulgated by the National Labor Relations Board for determining whether consolidation of separate entities is proper: (1) interrelation of operations; (2) common management; (3) centralized control of labor relations; and, (4) common ownership or financial control. Baker, 560 F.2d at 392. District courts within this circuit have employed the four-factor Baker analysis in determining joint employer status. Ingber v. Ramada Inns, Inc., 20 F.E.P. 1006, 1007 (U.S.D.C. N.D.Ga. 1979); Carter v. Shop Rite Foods, Inc., 470 F.Supp. 1150, 1160 (N.D.Tex.1979); McLendon v. Continental Trailways, Inc., 18 F.E.P. 1698, 1702 (U.S.D.C. N.D.Tex.1978); EEOC v. Upjohn Corp., 445 F.Supp. 635, 638-39 (N.D.Ga.1977). Without specifically mentioning the four-prong test, the Fifth Circuit recently cited Baker with approval in Quijano v. University Federal Credit Union, 617 F.2d 129, 131 (5th Cir. 1980). In Dumas v. Town of Mt. Vernon, Alabama, 612 F.2d 974 (5th Cir. 1980), the Fifth Circuit cited the four factors and addressed the joint-employer question: We decline to apply this theory to hold that the town and the" }, { "docid": "8732538", "title": "", "text": "916 (N.D.Ga.1973). The criteria and standards developed in other types of employment discrimination cases when dealing with similar problems in interpreting the definitions of employer have been applied to ADEA cases. See: Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979) (Title VII, 42 U.S.C. Sec. 2000e, et seq.) One such criteria has been the formula used by the National Labor Relations Board (NLRB) and adopted by the Supreme Court in Radio & Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965). Under this test the following factors are examined: (1) interrelation of operations, (2) common management, (3) common control of labor relations and (4) common ownership of financial control. Id. at p. 256, 85 S.Ct. at p. 877; Mas Marques v. Digital Equipment Corp., 637 F.2d 24, 27 (1st Cir. 1980); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 392 (8th Cir. 1977). Another method used by the courts to deal with this situation is by examining the relationships between the organizations to see if there exists an agency relationship that could establish an employment nexus between them. The agency theory is based on the definition of the term employer by the ADEA as including an agent of an employer. The employment nexus is established when one of the corporations has been the agent of the other with respect to employment practices. Mas Marques, ante, at 27; Fike v. Gold Kist, Inc., infra, at p. 728; Linkskey v. Heidelberg Eastern, ante, at 1183. Other courts have approached the problem as one analogous to the alter-ego theory developed in the law of corporations. Viewed in this light, the relations between the corporations have to be so intermingled as to demonstrate that separate existence is a “sham.” Mas Marques, ante, at 27; Fike v. Gold Kist, Inc., 514 F.Supp. 722, 725 (N.D.Ala.1981); Armbruster v. Quinn, 498 F.Supp. 858, 862 (E.D.Mich.1980); Hassell v. Harmon Foods, Inc., 336 F.Supp. 432 (W.D.Tenn.1971), aff’d 454 F.2d 199 (6th Cir. 1972). See also: Annotation 49 A.L.R.Fed. 900. By scrutinizing the corporate relationships" }, { "docid": "23514463", "title": "", "text": "389 (8th Cir.1977), rests upon a finding that the two entities constitute a single or joint employer. The second rests on a finding that one entity, here the Association, is merely the agent or instrumentality of the other, an approach employed in EEOC v. ISC Financial Gorp., 14 Empl.Prac.Dec. ¶ 7729 (W.D.Mo.1977). See also Linskey v. Heidelberg Eastern, Inc., 470 F.Supp. 1181, 1184 (E.D.N.Y.1979); EEOC v. Upjohn Corp., 445 F.Supp. 635, 639 (N.D.Ga.1977). In examining those cases the court concluded that although an agency relationship did not exist, the Company and the Association could be considered a joint employer under Baker v. Stuart Broadcasting Company. The Court in Baker noted that there are four criteria for determining whether a consolidation of separate entities is proper for application of the standards promulgated by the National Labor Relations Board: (1) interrelations of operation; (2) common management; (3) centralized control of labor relations; and (4) common ownership and financial control. 560 F.2d at 392. The court concluded that the liberal treatment accorded the interpretation of Title VII warranted the use of like factors in determining whether two entities should be considered to be one employer under 42 U.S.C. § 2000e(b). Id. The trial court in the present case found that the Baker standard was useful by analogy in helping to analyze the relationship of the Company and the benefits Association. In applying the first standard, that is the interrelatedness of Company and Association operations, the trial court found a clear interrelationship in the operations of the two. With this conclusion we fully agree. Recently hired employees received information about the opportunity for Association membership, which is conditioned only upon employment with the Company, physical examination requirements and an agreement to join and pay the prescribed dues. The Association has no paid employees of its own but depends upon Association volunteers who are permitted to do their work on Company time and with the use of Company equipment and space. The trial court also pointed to the fact that the election of board members to the Association was handled through the Company’s facilities. The" }, { "docid": "23289065", "title": "", "text": "at one time. A liberal construction must be accorded to the term: employer. Trevino v. Celanese Corp., 701 F.2d 397, 403 (5th Cir. 1983); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 391 (8th Cir.1977). McKenzie tried to prove to the trial court that Davenport-Harris’ and Protective’s activities, operations, ownership and management are sufficiently interrelated to be perceived as a single employer for purposes of Title VII. Counsel for the defendants contended that the separate corporate existence of Davenport-Harris and Protective could not be disregarded. Based on three depositions and a handful of exhibits alone, the district court judge determined that Protective could not be considered an employer of McKenzie. The court made this determination despite its finding that “there is substantial similarity in their corporate officers and in their directors, as well as a common business interest. The ownership of the two corporations, in effect, is also quite similar.” The court also found that “there is a significant degree of interrelationship.” Our role is to decide whether McKenzie presented sufficient evidence to create a genuine issue concerning whether Davenport-Harris and Protective should be treated as a single entity. The predominant trend in determining whether two businesses should be treated as a single or joint employer under § 2000e(b) is to apply the standards promulgated by the National Labor Relations Board (NLRB). See Equal Employment Opportunity Comm’n v. Wooster Brush Co. Employees Relief Ass’n, 727 F.2d 566, 572 (6th Cir. 1984); Childs v. Local 18, Int’l Bhd. of Elec. Workers, 719 F.2d 1379, 1382 (9th Cir.1983); Trevino, 701 F.2d at 404; Mas Marques v. Digital Equip. Corp., 637 F.2d 24, 27 (1st Cir.1980); Baker, 560 F.2d at 392; Fike v. Gold Kist, Inc., 514 F.Supp. 722, 726 (N.D.Ala.), aff'd, 664 F.2d 295 (11th Cir.1981). The NLRB factors include: (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. The showing required to warrant a finding of single employer status has been described as “highly integrated with respect to ownership and operations.” Fike, 514 F.Supp. at 726. While it would be" }, { "docid": "22222784", "title": "", "text": "is exempt from taxation under section 501(c) of Title 26, except that during the first year after March 24, 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers. 42 U.S.C.A. 2000e(b) (1981). . See, e.g., Woodford v. Kinney Shoe Corp., 369 F.Supp. 911, 917 (N.D.Ga.1973); United States v. Local 638, Enterprise Ass’n, 360 F.Supp. 979, 995 (S.D.N.Y.1973), modified 501 F.2d 622 (2d Cir.1974); United States v. Jacksonville Terminal Co., 351 F.Supp. 452, 454 (M.D.Fla.1972), aff'd in part, rev’d in part on other grounds and remanded, 451 F.2d 418 (5th Cir.1971); Williams v. New Orleans Steamship Ass’n, 341 F.Supp. 613, 615 (E.D.La.1972), aff’d in part, rev’d in part on other grounds and remanded, 673 F.2d 742 (5th Cir.1982). The rules developed by the NLRB for determining when two or more employers may be treated as one have also been extended to determinations of single employer status in actions brought under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-34, a statute patterned after Title VII. See, e.g., York v. Tennessee Crushed Stone Ass’n, 684 F.2d 360, 362 (6th Cir.1982); Marshall v. Arlene Knitwear, Inc., 454 F.Supp. 715 (E.D.N.Y.1978), aff’d in part, rev’d in part and remanded, 608 F.2d 1369 (2d Cir.1979). . Baker v. Stuart Broadcasting Co., 560 F.2d 389, 391-92 (8th Cir.1977); Fike v. Gold Kist, Inc., 514 F.Supp. 722, 725-28 (N.D.Ala.1981); Carter v. Shop Rite Foods, Inc., 470 F.Supp. 1150, 1160 (N.D.Tex.1979); EEOC v. Upjohn Corp., 445 F.Supp. 635, 638-39 (N.D.Ga.1977); Williams v. New Orleans Steamship Ass’n, 341 F.Supp. 613 (E.D.La.1972), aff’d in part, rev’d in part on other grounds and remanded, 673 F.2d 742 (5th Cir.1982). These four factors were first adopted by the Supreme Court for application in the area of labor relations in Radio Union v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 257, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965). Although we declined to apply the integrated enterprise standard in Dumas v. Town of Mt. Vernon, 612 F.2d 974, 979 n. 9 (5th Cir.1980), that case is readily distinguishable on its facts. Plaintiffs in" }, { "docid": "22143370", "title": "", "text": "include the Equal Employment Opportunity Act of 1972. The 1972 Amendment to Section 701(b) of the Civil Rights Act of 1964 served to broaden its reach by subjecting more employers to the Act as a result of the reduction in the statutory minimum number of employees from twenty-five to fif teen. 42 U.S.C. § 2000e(b). We construe the Amendment’s broad reach as an indication of Congress’ desire to have the entire Act broadly construed. When exploring the limits of Title VII jurisdiction, corporate law doctrines may be helpful in our assessment of whether we should treat the defendants as separate corporate entities. However, the most important requirement is that there be sufficient indicia of an interrelationship between the immediate corporate employer and the affiliated corporation to justify the belief on the part of an aggrieved employee that the affiliated corporation is jointly responsible for the acts of the immediate employer. When such a degree of interrelatedness is present, we consider the departure from the “normal” separate existence between entities an adequate reason to view the subsidiary’s conduct as that of both. See Hassell v. Harmon Foods, Inc., 454 F.2d at 200; see also Watson v. Gulf & Western Industries, 650 F.2d 990, 993 (9th Cir.1981) (Absent special circumstances, parent is not responsible for subsidiary’s Title VII violations). For guidance in testing the degree of interrelationship, we look to the four-part test formulated by the NLRB and approved by the Supreme Court in Radio Union v. Broadcast Service, 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965) (per curiam). Accord Mas Marques v. Digital Equipment Corp., 637 F.2d 24, 27 (1st Cir. 1980); Williams v. Evangelical Retirement Homes of St. Louis, 594 F.2d 701, 703 (8th Cir.1979); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 392 (8th Cir.1977); see also EEOC v. American National Bank, 652 F.2d 1176, 1185 (4th Cir.1981), cert, denied, — U.S. —, 103 S.Ct. 235, 74 L.Ed.2d 186; cf. Dumas v. Town of Mt. Vernon, 612 F.2d 974, 980 n. 9 (5th Cir.1980). This Circuit has also adopted this test which assesses the degree of (1)" }, { "docid": "22143387", "title": "", "text": "is not a “normal one” in assessing whether the two will be considered as a single employer for Title VII purposes. Among these cases is Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir. 1977). In Baker, the Eighth Circuit adopted the test used by the National Labor Relations Board to determine the single employer question for purposes of Section 2(2) of the National Labor Relations Act, 29 U.S.C. § 152(2). The court in Baker noted our decision as being in conflict with courts that have embraced the NLRB formulation. See also EEOC v. Cuzzens of Georgia, Inc., 15 FEP Cases 1807 (N.D.Ga.1977); EEOC v. Upjohn Corp., 445 F.Supp. 635 (N.D.Ga.1977). Yet district courts of this Circuit have concluded that the NLRB test is not inconsistent with Hassell, a position that amicus curiae takes in this case. See EEOC v. The Wooster Brush Co., 523 F.Supp. 1256 (N.D.Ohio 1981) (Contie, J.) and the district court opinion herein, 498 F.Supp. at 862. See also Mas Marques v. Digital Equipment Corp., 637 F.2d 24 (1st Cir.1980). . The determination that an employer who employed fifteen employees should be subject to the requirements of 42 U.S.C. § 2000e was a compromise between the proponents and opponents of the original bill that was introduced in the House and Senate. As originally proposed, both the House and Senate version of the bill set the minimum number of employees at eight. See H.R. 1746, 1st Sess. 117 Cong.Rec. 212, Reprinted in Subcommittee on Labor-Senate Committee on Labor and Public Welfare Legislative History of the Equal Employment Opportunity Act of 1972 (Comm. Print 1972) (hereinafter Legislative History) at 1; S. 2515 Section 2(b) introduced September 14, 1971, 92d Cong., 1st Sess. 117 Cong.Rec. 31702, Reprinted in Legislative History at 158. The Senators who spoke against the eight-employee provision echoed Senator Williams’s concerns as to the antidiscrimination principle. See Remarks of Senator Allen, 118 Cong.Rec. 2386 (1972), Legislative History at 1269; Remarks of Senator Fannin, 118 Cong.Rec. 2409 (1972), Legislative History at 1297; see also Remarks of Senator Cotton, 118 Cong.Rec. 2391 (1972), Legislative History at 1282." }, { "docid": "23478770", "title": "", "text": "Digital Corp. for accounting or bookkeeping serv ices, the affidavits assert that Digital Corp. does not control Digital GmbH’s sales goals or marketing strategies, and sales catalogues and advertising are done separately. On the basis of the defendants’ affidavits, there was no recognized theory upon which Digital Corp. could be held responsible under Title VII for the acts of Digital GmbH. The two companies would not, in our opinion, be a single enterprise or employer under the test developed by the National Labor Relations Board and applied by some courts in Title VII cases. E. g., Radio and Television Broadcast Technicians Local 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965) (considering (1) interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 392 (8th Cir. 1977); Linskey v. Heidelberg Eastern, Inc., 470 F.Supp. 1181, 1183-84 (E.D.N.Y.1979); EEOC v. Upjohn Corp., 445 F.Supp. 635, 638 (N.D.Ga.1977). Nor would Digital Corp. be liable on the theory that the parent-subsidiary relationship is a sham, see Hassell v. Harmon Foods, Inc., 336 F.Supp. 432, 433 (W.D.Tenn.1971), aff’d, 454 F.2d 199 (6th Cir. 1972), or that Digital Corp. so controls Digital GmbH as to make Digital GmbH its agent, see Linskey v. Heidelberg Eastern, Inc., supra, at 1183-84; EEOC v. Upjohn Corp., supra, at 638. The district court was likewise correct in concluding that Mas Marques’ opposition papers did not suffice to create a genuine issue of fact concerning Digital Corp.’s liability. In his two “oppositions” to summary judgment, which were unsworn and unsupported by affidavits, Mas Marques asserted a close relationship between Digital Corp. and Digital GmbH, but his statements about the corporate relationship were conclusory (e. g., the companies are “one and the same,” their parent-subsidiary relationship is a “sham,” Digital Corp. “impermissibly controlled” Digital GmbH, Digital management “takes its orders from” Digital Corp.). Even reading the pro se opposition papers liberally, in accordance with Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d" }, { "docid": "9840066", "title": "", "text": "It has generally been held that a corporation and its employees cannot conspire with each other in violation of section 1985. Whitten v. Petroleum Club of Lafayette, 508 F.Supp. 765, 770-71 (W.D.La.1981); Harris v. Warner-Lambert Co., 486 F.Supp. 125, 127 (N.D.Ga.1980); Girard v. 94th & Fifth Avenue Corp., 530 F.2d 66 (2d Cir.1976), cert. denied, 425 U.S. 974, 96 S.Ct. 2173, 48 L.Ed.2d 798 (1976); Dombrowski v. Dowling, 459 F.2d 190 (7th Cir.1972); but see Hodgin v. Jefferson, 447 F.Supp. 804 (D.Md.1978); Dupree v. Hertz Corp., 419 F.Supp. 764 (E.D.Pa.1976). Defendants are entitled to judgment in their favor on this claim. V. Liability of the Parent Corporation Defendants argue that Winn-Dixie Stores, Inc., the parent corporation, cannot be held liable in this case for the acts of-employees of its subsidiary, the Winn-Dixie Atlanta division. It is established that a parent corporation and its subsidiary can be jointly liable under Title VII. Carter v. Shop Rite Foods, Inc., 470 F.Supp. 1150, 1159-60 (N.D.Tex.1979); EEOC v. Upjohn Corp., 445 F.Supp. 635, 638-39 (N.D.Ga.1977) (Murphy J.). See Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir.1977). In EEOC v. Upjohn, the Court noted “two closely related bases” upon which a parent corporation’s liability for the discriminatory acts of a subsidiary may be predicated: First, there may be evidence that the two corporations were so closely related in their activities and management as to constitute an integrated enterprise.... The most appropriate and definitive method for a determination as to whether a consolidation of separate entities is warranted involves a utilization of the National Labor Relations Board’s single employer standards. This quadripartite test entails proof of: (1) interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership or financial control. ... The second basis upon which to establish the responsibility of [a parent] for acts of its subsidiary ... involves agency, (citations omitted). Plaintiffs produced insufficient evidence under either theory to hold the parent liable for discrimination by the Atlanta subsidiary. There was no evidence whatsoever regarding common ownership or management, and none to suggest that the sub" }, { "docid": "7194816", "title": "", "text": "of Local 18 and the IBEW or Local 18 acting as agent of the IBEW. We disagree. In Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir.1977), the Eighth Circuit applied a four-prong test, used by the NLRB in labor cases, to determine whether two employing entities constitute a single employer for purposes of jurisdiction under Title VII. [T]he standard to be employed to determine whether consolidation of separate [employing] entities is proper are the standards promulgated by the National Labor Relations Board: (1) inter-relation of operations, (2) common management, (3) centralized control of labor relations; and (4) common ownership or financial control. Id. at 392; accord York v. Tennessee Crushed Stone Assoc., 684 F.2d 360, 362 (6th Cir.1982); Mas Marques v. Digital Equipment Corp., 637 F.2d 24, 27 (1st Cir.1980); Williams v. Evangelical Retirement Homes of Greater St. Louis, 594 F.2d 701, 703 (8th Cir.1979). Under this standard, appellees argue that there is no basis for considering Local 18 and the IBEW to be a single employer. Although Local 18 is chartered by the IBEW, it conducts its own labor relations, hires and fires employees on its own, elects its own officers, conducts its own collective bargaining, and has a separate treasury. We conclude, therefore, that Local 18 and the IBEW are not a single employer under the Stuart Broadcasting test. Appellant argues, nonetheless, that if the Local is an agent of the IBEW, a suit against Local 18 as agent of the IBEW meets the Title VII jurisdictional requirement. This position is supported by the language of the statute, 42 U.S.C. § 2000e(b), and indirectly by Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1215 (9th Cir.1980) (International liable for actions of Local only if Local is agent of International). In this case, however, appellant has not alleged or offered to prove any of the traditional indicia of an agency relationship (such as consent by the alleged agent that another shall act on his behalf, and control of the alleged agent by the principal). See, e.g., Nelson v. Serwold, 687 F.2d 278, 282 (9th Cir.1982); cf. Kaplan" }, { "docid": "8732537", "title": "", "text": "Superior. This conclusion now leads us to determine whether Germaine’s relations with Superior are sufficiently integrated so as to form a single enterprise and therefore to be considered as employer under the ADEA which defines one as any person engaged in an industry affecting commerce or any agent of such person, the term person includes one or more corporations. 29 U.S.C. Sec. 630(a), (b). Under this provision, the courts have considered nominally separate corporations as single employers depending on whether the dominant corporation so controls the other so as to make the subservient corporation a mere agent or instrumentality of the other. Linskey v. Heidelberg Eastern, Inc., 470 F.Supp. 1181, 1184 (E.D.N.Y.1979); Marshall v. Arlene Knitwear, 454 F.Supp. 715 (E.D.N.Y.1978) aff’d. in part without op. and rev’d. in part without op. 608 F.2d 1369 (2d Cir. 1979) cited in Geller v. Markham, 635 F.2d 1027 (2d Cir. 1980) at p. 1034; Brennan v. Ace Hardware Corp., 362 F.Supp. 1156 (D.C.Neb.1973), aff’d. 495 F.2d 368 (8th Cir. 1974); Woodford v. Kinney Shoe Corp., 369 F.Supp. 911, 916 (N.D.Ga.1973). The criteria and standards developed in other types of employment discrimination cases when dealing with similar problems in interpreting the definitions of employer have been applied to ADEA cases. See: Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979) (Title VII, 42 U.S.C. Sec. 2000e, et seq.) One such criteria has been the formula used by the National Labor Relations Board (NLRB) and adopted by the Supreme Court in Radio & Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965). Under this test the following factors are examined: (1) interrelation of operations, (2) common management, (3) common control of labor relations and (4) common ownership of financial control. Id. at p. 256, 85 S.Ct. at p. 877; Mas Marques v. Digital Equipment Corp., 637 F.2d 24, 27 (1st Cir. 1980); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 392 (8th Cir. 1977). Another method used by the courts to deal with this situation is by examining the relationships between" } ]

[ { "docid": "6695170", "title": "", "text": "and we therefore do not review the district court’s grant of summary judgment on that issue. . In Murray, plaintiffs speech concerned a furlough lottery instituted to determine which employees were to be laid off. The court held this \"was purely a labor relations matter, an arrangement of employees under which some would win and some would lose.” 741 F.2d at 438. Because the Murray facts are substantially different from those before us, we have no occasion to comment on how that case would be decided under this court’s precedent. . Because Stamler conceded for the purposes of the summary judgment motion that “all of these disciplinary actions about which Zamboni complains were in reprisal for his opposition to the reorganization plan and its ramifications upon him,” Appellees’ Brief at 7, we do not reach the issue of whether the protected activity was a substantial or motivating factor in the actions taken against Zamboni, or whether the same actions would have been taken even had Zamboni not engaged in protected conduct. See Trotman v. Board of Trustees of Lincoln University, 635 F.2d 216, 224 (3d Cir.1980), cert. denied, 451 U.S. 986, 101 S.Ct. 2320, 68 L.Ed.2d 844 (1981). We note that these inquiries, which follow a determination that speech is protected, are for the jury. See Johnson v. Lincoln University, 776 F.2d 443, 454 (3d Cir.1985). . In addition to their other arguments, the individual defendants assert that they are immune from suit in their individual capacities under the qualified immunity doctrine of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Although the district court did not reach this issue, the defendants argue that \"[t]he question of a public official’s qualified immunity is ... purely a question of law” which this court should determine. Appellee’s Brief at 45-46. Defendants’ argument that Zamboni’s First Amendment rights were not clearly established at the time the action occurred cannot be sustained in light of this court’s line of precedent on public employees’ protected speech. See, e.g., Czurlanis v. Altanese, 721 F.2d at 107; Trotman v. Board of Trustees" } ]

[ { "docid": "2435848", "title": "", "text": "claim by demonstrating that, absent the protected conduct, it would have taken the same adverse action. Id. (citations omitted). See also Reilly v. City of Atlantic City, 532 F.3d 216 (3d Cir.2008) (quoting Springer v. Henry, 435 F.3d 268, 275 (3d Cir.2006)). A determination of whether a plaintiff has engaged in activity protected by the First Amendment is a question of law. Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir.2006); Baldassare, 250 F.3d at 195. Conversely, the questions of whether a plaintiffs protected activity was a substantial or motivating factor in the retaliatory action and whether the defendant would have taken adverse action absent the protected activity are questions of fact. Id.; Curinga v. City of Clairton, 357 F.3d 305, 310 (3d Cir.2004). Therefore, the Court is confined at this stage to determining whether, viewing the evidence of record in a light most favorable to Plaintiff, a reasonable fact-finder could determine that her engagement in protected activity was a substantial or motivating factor in the retaliatory conduct or whether Defendants would have taken adverse action against Plaintiff regardless of her PHRC claim. See Baldassare, 250 F.3d at 195; Green v. Phila. Housing Auth., 105 F.3d 882, 889 (3d Cir.1997). 1. Substantial or Motivating Factor The determination of whether Plaintiffs participation in protected activity was a substantial or motivating factor for engaging in retaliatory conduct “embraces two distinct inquiries: ‘did the defendants take an action adverse to the public employee, and, if so, was the motivation for the action to retaliate against the employee for the protected activity.’ ” Schneck v. Saucon Valley School Dist., 340 F.Supp.2d 558, 568 (E.D.Pa.2004) (quoting Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 800 n. 3 (3d Cir.2000)). The United States Court of Appeals for the Third Circuit has clarified the inquiry and has held that, in order to establish that retaliation was a substantial or motiving factor for purposes of a First Amendment retaliation claim brought pursuant to § 1983, the plaintiff is required to show that the defendants engaged in retaliatory action and “that there was a causal connection" }, { "docid": "20701254", "title": "", "text": "his teaching services are satisfactory ....” Id. at 600, 92 S.Ct. at 2699. Moreover, plaintiff relied upon Guidelines promulgated by the Coordinating Board of the Texas College and University System which stated if employed for seven years, the employee has some form of job tenure. Id. Mr. Latessa, however, has pointed to no evidence of such rules or understandings as to racing judges. The very generalized testimony cited does not reflect a specific bilateral understanding that particular cause must be shown before non-reappointment may occur. Thus, the district court correctly granted summary judgment to defendants on the basis of no triable issues of fact as to the existence of a property interest in plaintiff’s position as racing judge. IV Unlike Fourteenth Amendment due process rights, appellant’s First Amendment right to be free from retaliation for speech is not defeated by the lack of a property or liberty interest in his employment. Id. at 599, 92 S.Ct. at 2698-99. A public employee’s claim of retaliation for a protected activity, here speech, is analyzed in three steps. Green v. Philadelphia Hous. Auth., 105 F.3d 882, 885 (3d Cir.1997); Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir.1996); Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir.1995). First, the plaintiff must demonstrate that his speech was protected. Green, 105 F.3d at 885. Second, the plaintiff must show that the speech was a motivating factor in the alleged retaliatory action. Id. Third, the defendants may defeat the plaintiffs claim by establishing that the adverse action would have been taken even in the absence of the protected speech. Id. The district court focused on Mr. Latessa’s testimony of November 22, 1993 before the New Jersey Office of Administrative Law which indicated that Mr. Latessa did not feel free to disagree with the penalty recommendations of Mr. Zanzuceki. The court determined that the decision not to reappoint Mr. Latessa occurred prior to November 22, 1993, and thus the testimony could not have been a motivating factor in the alleged retaliatory non-reappointment. In denying defendants’ prior motion to dismiss, the district court had found that" }, { "docid": "14061863", "title": "", "text": "F.2d at 1062. In light of our conclusions that Watters’ speech was on a matter of public concern, and that the City has not met its burden to show that the interest in the speech was outweighed by the interests of the City, the outcome of the Pickering balance is clear, and the district court erred in holding that the speech was not protected by the First Amendment. It does not follow that this mandates a holding that Watters is entitled to judgment. There remain disputed issues as to the reason for his termination. Although the City did not contest on appeal that Watters was fired for his speech, there was some testimony that might allow a jury to find that he was terminated for insubordination because of his actions in unilaterally cutting back certain services provided by the EAP. See Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576 (1977). Therefore, we rest our decision on the protected status of the speech, the only issue decided by the district court, and express no opinion as to any issue remaining in the district court. III. CONCLUSION For the foregoing reasons, we will reverse the district court’s order granting judgment in favor of defendants pursuant to Rule 50(a) and remand to the district court for proceedings consistent with this opinion. . On April 25, 1991 the district court had granted defendants' motion to dismiss the due process claim and all claims against Mayor Goode. Wat-ters does not appeal those rulings. . Whether the speech was a substantial factor in the retaliatory action and whether Watters would have been fired anyway remain issues in contention between the parties. See Johnson v. Lincoln University, 776 F.2d 443, 454 (3d Cir.1985) (\"second and third questions ... should be submitted to the jury”); see also Zamboni v. Stamler, 847 F.2d 73, 79 n. 6, 80 (3d Cir.) (“these inquiries [whether a substantial or motivating factor and whether same actions would have been taken regardless] ... are for the jury”), cert. denied, 488 U.S. 899, 109 S.Ct. 245, 102 L.Ed.2d 233 (1988). . In Gomez" }, { "docid": "22430376", "title": "", "text": "his ter mination also rebutted employer’s claim that the professor would have been terminated regardless of his protected activities). We reject the officers’ contention that courts may never grant summary judgment on either the second or third steps of this analysis. Although we have often noted that the first prong of the First Amendment retaliation test presents questions of law for the court while the second and third prongs present questions of fact for the jury, e.g., Curinga v. City of Clairton, 357 F.3d 305, 310 (3d Cir.2004) (citing Baldassare, 250 F.3d at 195), only genuine questions of fact should be determined by the jury. For example, in Ambrose v. Township of Robinson, Pa., 303 F.3d 488, 496 (3d Cir.2002), we held that judgment as a matter of law under Rule 50(b) should have been granted to the defendant where the plaintiff failed to present sufficient evidence that his protected activity was a substantial factor in his suspension. The same principle applies in the summary judgment context under Rule 56. E.g., Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir.1995) (noting District Court concluded that plaintiff made sufficient showing that speech was substantial factor motivating termination to submit question to jury). In this case, the officers satisfied their evidentiary burden on the “substantial factor” prong and sufficiently rebutted the city’s evidence that they would have been terminated anyway. The officers’ strongest evidence suggests that several nonresident employees who did not participate in the 1997 lawsuit were not terminated despite the city’s knowledge or unrebutted suspicions that they lived outside the city. The District Court in its opinion gives an example of such an employee. After holding that the officers could not substantiate their claim that “similarly situated” employees were allowed to keep their jobs, the court held that Robert Murray had successfully done so. Murray alleged that his neighbor Robert Warner, a firefighter for the city, was not terminated even though they both lived outside the city. The court found that whether Warner actually lived outside the city and whether the city knew of Warner’s possible noncompliance were" }, { "docid": "3556367", "title": "", "text": "omitted); Pickering v. Board of Educ. of Township High School, 391 U.S. 563, 574, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (“statements by public officials on matters of public concern must be accorded First Amendment protection”) (citation omitted). That right, however, is not absolute, and must be balanced against the interest of the state in “promoting the efficiency of the public services it performs through its employees.” See Connick, 461 U.S. at 142, 103 S.Ct. 1684 (quoting Pickering, 391 U.S. at 568, 88 S.Ct. 1731). The balance between the First Amendment and the government’s efficiency interest is discovered through a tripartite analysis. First, plaintiff must show that the activity or expression in question was protected. Second, plaintiff must demonstrate that the protected activity was a substantial or motivating factor in the alleged retaliatory action. Third, an employer may establish that it would have taken the adverse employment action regardless of whether the employee had engaged in the protected conduct. See Green v. Philadelphia Hous. Auth., 105 F.3d 882, 885 (3d Cir.), cert. denied, 522 U.S. 816, 118 S.Ct. 64, 139 L.Ed.2d 26 (1997); Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir.1996); Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir.1995); Swineford v. Snyder County, 15 F.3d 1258, 1270 (3d Cir.1994); Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir.1993). 1. Protected Interest Whether the activity engaged in by an employee was protected by the First Amendment depends on the outcome of the balancing inquiry established by the Supreme Court in Pickering v. Board of Education of Township High School. First, the expression must be on a matter of public concern, and second, the public interest favoring the expression must out weigh the interest of the state in promoting the efficiency of its public services. See Waters v. Churchill, 511 U.S. 661, 668, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (plurality); Green, 105 F.3d at 885; Pro, 81 F.3d at 1288; Watters, 55 F.3d at 892. Thus, I must assess the interest of each party, and then determine which interest is more substantial. The curious aspect" }, { "docid": "20701255", "title": "", "text": "Green v. Philadelphia Hous. Auth., 105 F.3d 882, 885 (3d Cir.1997); Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir.1996); Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir.1995). First, the plaintiff must demonstrate that his speech was protected. Green, 105 F.3d at 885. Second, the plaintiff must show that the speech was a motivating factor in the alleged retaliatory action. Id. Third, the defendants may defeat the plaintiffs claim by establishing that the adverse action would have been taken even in the absence of the protected speech. Id. The district court focused on Mr. Latessa’s testimony of November 22, 1993 before the New Jersey Office of Administrative Law which indicated that Mr. Latessa did not feel free to disagree with the penalty recommendations of Mr. Zanzuceki. The court determined that the decision not to reappoint Mr. Latessa occurred prior to November 22, 1993, and thus the testimony could not have been a motivating factor in the alleged retaliatory non-reappointment. In denying defendants’ prior motion to dismiss, the district court had found that Mr. Latessa raised issues potentially satisfying the first prong of the test. For speech by a government employee to be protected, it must be regarding a public concern, as opposed to employment matters unrelated to such concerns. See Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708 (1983); Azzaro v. County of Allegheny, 110 F.3d 968 (3d Cir.1997). Furthermore, we held in Green that a public employee’s truthful testimony before a government adjudicating or fact-finding body, whether pursuant to a subpoena or not,is a matter of public interest. 105 F.3d at 887. Thus, Mr. Latessa’s testimony before the Office of Administrative Law is a matter of public concern. A balancing test exists to determine if such public concern speech by a government employee is protected. See Pickering v. Board of Educ. of Township High Sch. Dist. 205, Will County, Illinois, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968). The public interest favoring expression “must not be outweighed by any injury the speech could cause to the" }, { "docid": "2435846", "title": "", "text": "or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress .... Plaintiff claims Defendants retaliated against her in violation of § 1983 for exercising her rights under the First Amendment. (Docket No. 17 at ¶¶ 26-31). The First Amendment to the United States Constitution provides that “Congress shall make no law ... abridging the freedom of speech .... ” U.S. Const. Amend. I. The Amendment applies to the states, their political subdivisions, and agents thereof through the Fourteenth Amendment. See Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). The First Amendment is implicated when a public employee is subjected to an adverse employment action in retaliation for his or her speech. Bennis v. Gable, 823 F.2d 723, 731 (3d Cir.1987). In determining whether a plaintiff has established a prima facie case of First Amendment retaliation, under § 1983, the Court must engage in a three-step analysis. Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir.2009) (citing Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir.2006)); Baldassare v. State of N.J., 250 F.3d 188, 195 (3d Cir.2001). First, the plaintiff must establish that the activity in question was protected. Baldassare v. State of N.J., 250 F.3d 188, 195 (3d Cir.2001) (citing Holder v. City of Allentown, 987 F.2d 188 (3d Cir.1993)). Here, Defendants do not challenge the fact that Plain tiffs speech was protected. (Docket No. 46 at 12-17). Second, the plaintiff is required to show that “the protected activity was a substantial or motivating factor in the alleged retaliatory action.” Id. (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Watters v. City of Philadelphia, 55 F.3d 886 (3d Cir.1995); Swineford v. Snyder County of Pa., 15 F.3d 1258, 1270 (3d Cir.1994)). Third, once a plaintiff has established these elements, the defendant-employer can then rebut the" }, { "docid": "23159814", "title": "", "text": "can demonstrate by a preponderance of the evidence Baldassare was terminated for other reasons. Watters, 55 F.3d at 892 (citing Doyle, 429 U.S. at 287, 97 S.Ct. 568). IV. Qualified Immunity Defendants insist they are immune under the doctrine of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The District Court mentioned this defense approvingly in its oral decision. But it remains unavailing. Defendants assert that Baldassare’s First Amendment rights against retaliation were not clearly established at the time Buckley chose to- discharge him, citing Sprague, 546 F.2d 560, and Hoopes v. Nacrelli, 512 F.Supp. 363 (E.D.Pa.1981) (dismissing police chiefs complaint alleging infringement of his First Amendment rights when mayor demoted him). As noted, Sprague does not control the expression at issue. Defendants’ argument that Baldassare’s First Amendment rights were not clearly established cannot be sustained. See, e.g., Green v. Phila. Hous. Auth., 105 F.3d 882 (3d Cir.1997) (holding voluntary court appearance by police officer constituted matter of public concern); Watters v. City of Philadelphia, 55 F.3d 886 (3d Cir.1995) (holding police department could not dismiss employee for criticizing departmental program in newspaper article); Feldman v. Phila. Hous. Auth.; 43 F.3d 823 (3d Cir.1994) (holding housing authority could not dismiss public auditor for report detailing wrongdoing by housing authority officials); Holder v. City of Allentown, 987 F.2d 188 (3d Cir.1993) (holding city could not terminate city employee for criticizing public employment residency requirement in local newspaper); O’Donnell v. Yanchulis, 875 F.2d 1059 (3d Cir.1989) (holding township could not dismiss police chief for protected speech); Czurlanis v. Albanese, 721 F.2d 98 (3d Cir.1983) (holding county unlawfully discharged county mechanic for criticizing his department at public meetings). Some years ago, we recognized that “as of 1982 the law was ‘clearly established’ that a public employee could not be demoted in retaliation for exercising his rights under the first amendment.” Zamboni, 847 F.2d at 80 n. 7 (internal quotations and citation omitted). Our decision rests solely on the protected status of Baldassare’s conduct during his internal investigation. We express no opinion as to any issue left" }, { "docid": "9751838", "title": "", "text": "their First Amendment rights. Dadonna, 203 F.3d at 235. Plaintiff has asserted that, in retaliation for the various claims she filed against them, Defendants sent her home (without pay) for violating the dress code, castigated her in front of her co-workers, made derisive and unprofessional comments and finally dismissed her. It is clear that these actions, if taken with the intent to retaliate for protected speech, would be likely to deter the exercise of First Amendment rights. Thus, in light of the Third Circuit’s statement that “it is a question of fact whether [a] campaign [of harassment] reaehe[s] the threshold of actionability under § 1983,” id., Plaintiff has alleged sufficient adverse conduct for the purpose of defeating summary judgment. B. The Third Circuit has recognized a three-step framework for the analysis of First Amendment retaliation claims. See Green v. Philadelphia Housing Authority, 105 F.3d 882, 885 (3d Cir.1997), Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir.1996). See also, Pollock v. City of Ocean City, 968 F.Supp. 187, 191 (D.N.J.1997) (Irenas, J.). First, an employee must demonstrate that the activity in question was protected by the First Amendment. Green at 885; Feldman, 43 F.3d at 829 (citing Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). With this done, the employee must then offer evidence demonstrating a causal connection between the protected activity and the adverse action taken by the employer. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Finally, an employer is given the opportunity to show “by a preponderance of the evidence that it would have reached the same decision ... even in the absence of the protected conduct.” Id.; Suppan, 203 F.3d at 235; Green, 105 F.3d at 885. The parties appear to agree that Marrero’s conduct was protected by the First Amendment. Defendants state that “it is conceded that plaintiffs filing of the lawsuit in June of. 2000 constituted protected activity” and do not put forward any arguments relating to the nature of Plaintiffs earlier claims." }, { "docid": "14061864", "title": "", "text": "opinion as to any issue remaining in the district court. III. CONCLUSION For the foregoing reasons, we will reverse the district court’s order granting judgment in favor of defendants pursuant to Rule 50(a) and remand to the district court for proceedings consistent with this opinion. . On April 25, 1991 the district court had granted defendants' motion to dismiss the due process claim and all claims against Mayor Goode. Wat-ters does not appeal those rulings. . Whether the speech was a substantial factor in the retaliatory action and whether Watters would have been fired anyway remain issues in contention between the parties. See Johnson v. Lincoln University, 776 F.2d 443, 454 (3d Cir.1985) (\"second and third questions ... should be submitted to the jury”); see also Zamboni v. Stamler, 847 F.2d 73, 79 n. 6, 80 (3d Cir.) (“these inquiries [whether a substantial or motivating factor and whether same actions would have been taken regardless] ... are for the jury”), cert. denied, 488 U.S. 899, 109 S.Ct. 245, 102 L.Ed.2d 233 (1988). . In Gomez v. Texas Dep't of Mental Health & Mental Retardation, 794 F.2d 1018 (5th Cir.1986), the speech was that of an employee at a state facility for the mentally ill who informed an employee at a coordinate county facility of proposed administrative changes which would have affected their jobs. The court held that the speech was not of public concern because the proposed reallocation of administrative burdens was not a matter of interest in the community and the speech did not alert the public to wrongdoing or credibly touch upon the adequacy of patient care. Id. at 1021-22. In Phares v. Gustafsson, 856 F.2d 1003 (7th Cir.1988), a medical records technician disagreed with instructions from her supervisors. on coding of medical records. The’court found that her speech was not on a matter of public concern because its context and form indicated that it was speech on a purely personal disagreement over the operation of her unit, and the plaintiff was not trying to expose any wrongdoing or to inform the public of any problems within the" }, { "docid": "23159799", "title": "", "text": "F.2d 73, 79 n. 6, 80 (3d Cir.) (noting whether protected activity acted as substantial or motivating factor in discharge and whether same action would have been taken regardless are questions for jury), cert. denied, 488 U.S. 899, 109 S.Ct. 245, 102 L.Ed.2d 233 (1988); Johnson v. Lincoln Univ., 776 F.2d 443, 454 (3d Cir.1985) (holding “second and third questions ... should be submitted to the jury”). A. Matter Of Public Concern Our initial inquiry trains on whether Baldassare’s conduct in the investigation qualifies as a matter of public concern. Connick, 461 U.S. at 146, 103 S.Ct. 1684; Swineford, 15 F.3d at 1270-71. “A public employee’s speech involves a matter of public concern if it can ‘be fairly considered as relating to any matter of political, social or other concern to the community.’ ” Green, 105 F.3d at 885-86 (quoting Connick, 461 U.S. at 146, 103 S.Ct. 1684). In this respect, we focus on the content, form, and context of the activity in question. Connick, 461 U.S. at 147-48, 103 S.Ct. 1684; Watters, 55 F.3d at 892. The content of the speech may involve a matter of public concern if it attempts “to bring to light actual or potential wrongdoing or breach of public trust on the part of government officials.” Holder, 987 F.2d at 195 (internal quotations and citation omitted); see also Swineford, 15 F.3d at 1271 (“[S]peech disclosing public officials’ misfeasance is protected.”). The District Court ruled that Baldassare’s conduct in the investigation constituted a matter of public concern. We agree. In Feldman v. Phila. Hous. Auth., 43 F.3d 823 (3d Cir.1995), we recognized the compilation and distribution of a public auditor’s report involved matters of public concern. The plaintiff, James Feldman, worked as the director of the Philadelphia Housing Authority’s Internal Audit Department where he was responsible for unearthing and investigating corruption, fraud and illegality. As part of his duties, Feldman was required to share his findings with the agency’s executive director and board of commissioners. When Feld-man prepared a critical report aimed at improprieties in certain personnel decisions by the executive director and chairman of the" }, { "docid": "23159797", "title": "", "text": "F.3d 882, 885 (3d Cir.1997); Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir.1996). First, plaintiff must establish the activity in question was protected. Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir.1993). For this purpose, the speech must involve a matter of public concern. Connick, 461 U.S. at 147, 103 S.Ct. 1684; Watters, 55 F.3d at 892. Once this threshold is met, plaintiff must demonstrate his interest in the speech outweighs the state’s countervailing interest as an employer in promoting the efficiency of the public services it provides through its employees. Picketing v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811. (1968) (requiring courts to strike “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees”); Azzcuro, 110 F.3d at 976; Green, 105 F.3d at 885. These determinations are questions of law for the court. Waters, 511 U.S. at 668, 114 S.Ct. 1878; Green, 105 F.3d at 885. If these criteria are established, plaintiff must then show the protected activity was a substantial or motivating factor in the alleged retaliatory action. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Watters, 55 F.3d at 892; Swineford v. Snyder County Pa., 15 F.3d 1258, 1270 (3d Cir.1994). Lastly, the public employer can rebut the claim by demonstrating “it would have reached the same decision ... even in the absence of the protected conduct.” Doyle, 429 U.S. at 287, 97 S.Ct. 568; Swineford, 15 F.3d at 1270 (citing Czurlanis v. Albanese, 721 F.2d 98, 103 (3d Cir.1983)). The second and third stages of this analysis present questions for the fact finder and are not subject to review in this case. Green, 105 F.3d at 889 (recognizing second and third steps in Pickering/Mt. Healthy analysis are questions for fact finder); see also Watters, 55 F.3d at 892 n. 3; Zamboni v. Stamler, 847" }, { "docid": "1718690", "title": "", "text": "v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir.1995); Swineford v. Snyder County Pa., 15 F.3d 1258, 1270 (3d Cir.1994). A plaintiff must first demonstrate the activity in question was protected. Second, the plaintiff must show the protected activity was a substantial or motivating factor in the alleged retaliatory action. See Swineford, 15 F.3d at 1270. Finally, defendants may defeat plaintiffs claim by demonstrating “that the same action would have been taken even in the absence of the protected conduct.” Id. The district court did not reach the last two factors because it resolved the first factor in defendants’ favor as a matter of law. Accordingly, our discussion will focus on the first step, whether Green’s appearance in court was a protected activity. To qualify as a protected activity, Green’s court appearance must satisfy the Pickering balancing test. See Pickering v. Board of Educ. of Twp. High Sch. Dist. 205, Will County, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). First, the court appearance must constitute “speech ... on a matter of public concern.” Watters, 55 F.3d at 892. Second, the public interest favoring his expression “must not be outweighed by any injury the speech could cause to the interest of the state as an employer in promoting the efficiency of the public services it performs through its employees.” Id. See also Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35 (“The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”); Versarge v. Township of Clinton N.J., 984 F.2d 1359, 1366 (3d Cir.1993) (“On plaintiffs side of the balance, we must ... consider the interests of the public in plaintiffs speech.”). Determining whether Green’s appearance is protected activity under Pickering is an issue of law for the court to decide. See Waters v. Churchill, 511 U.S. 661, 667-69, 114 S.Ct. 1878, 1884, 128 L.Ed.2d 686 (1994). 1. A" }, { "docid": "1718689", "title": "", "text": "of the [Housing Authority Police Department], [and] endanger[ ] the plaintiff.” (Appellee’s Br. at 10.) At the close of evidence at trial, the district court granted defendants’ Rule 50 motion for judgment as a matter of law on all claims. Green brought this appeal. In reviewing the district court’s judgment, we must determine whether ‘Viewing all the evidence which has been tendered and should have been admitted in the light most favorable to the party opposing the motion, no jury could decide in that party’s favor.” Watters v. City of Philadelphia, 55 F.3d 886, 891 (3d Cir.1995) (quoting Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir.1993)). II. Discussion A. Section 1983 (First Amendment) On appeal Green contends his First Amendment right to free speech was violated because he was transferred in retaliation for his appearance as a character witness at Keller’s bail hearing. A public employee’s claim of retaliation for engaging in a protected activity is analyzed under a three-step process. See Pro v. Donatuccy 81 F.3d 1283, 1288 (3d Cir.1996); Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir.1995); Swineford v. Snyder County Pa., 15 F.3d 1258, 1270 (3d Cir.1994). A plaintiff must first demonstrate the activity in question was protected. Second, the plaintiff must show the protected activity was a substantial or motivating factor in the alleged retaliatory action. See Swineford, 15 F.3d at 1270. Finally, defendants may defeat plaintiffs claim by demonstrating “that the same action would have been taken even in the absence of the protected conduct.” Id. The district court did not reach the last two factors because it resolved the first factor in defendants’ favor as a matter of law. Accordingly, our discussion will focus on the first step, whether Green’s appearance in court was a protected activity. To qualify as a protected activity, Green’s court appearance must satisfy the Pickering balancing test. See Pickering v. Board of Educ. of Twp. High Sch. Dist. 205, Will County, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). First, the court appearance must constitute “speech ... on a matter of" }, { "docid": "23125313", "title": "", "text": "substitute its version of the facts for the jury’s version. Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 190 (3d Cir.1992), cert. denied, 507 U.S. 921, 113 S.Ct. 1285, 122 L.Ed.2d 677 (1993). Although judgment as a matter of law should be granted sparingly, a scintilla of evidence is not enough to sustain a verdict of liability. Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir.1993). “The question is not whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury could properly find a verdict for that party.” Patzig v. O’Neil, 577 F.2d 841, 846 (3d Cir.1978) (citation omitted) (quotation omitted). Thus, although the court draws all reasonable and logical inferences in the nonmovant’s favor, we must affirm an order granting judgment as a matter of law if, upon review of the record, it is apparent that the verdict is not supported by legally sufficient evidence. Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.1993). Therefore, if there is insufficient evidence to support a jury verdict, we should remand to the district court with instructions to enter a judgment as a matter of law for the Township. A. We apply a three-step test to Ambrose’s claim that he was suspended in retaliation for exercising his First Amendment rights. Bd. of County Comm’rs. v. Umbehr, 518 U.S. 668, 675, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996). First, a plaintiff must show that his conduct was constitutionally protected. Id. Second, he must show that his protected activity was a substantial or motivating factor in the alleged retaliatory action. Id. Finally, the defendant may defeat the plaintiffs case “by showing that it would have taken the same action even in the absence of the protected conduct.” Id. See also Green v. Philadelphia Hous. Auth., 105 F.3d 882, 885 (3d Cir.1997). The Township argues that Ambrose never met his initial burden of showing that his affidavit was a substantial or motivating factor in the Commissioners’ decision to suspend him since he did not produce" }, { "docid": "23159798", "title": "", "text": "U.S. at 668, 114 S.Ct. 1878; Green, 105 F.3d at 885. If these criteria are established, plaintiff must then show the protected activity was a substantial or motivating factor in the alleged retaliatory action. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Watters, 55 F.3d at 892; Swineford v. Snyder County Pa., 15 F.3d 1258, 1270 (3d Cir.1994). Lastly, the public employer can rebut the claim by demonstrating “it would have reached the same decision ... even in the absence of the protected conduct.” Doyle, 429 U.S. at 287, 97 S.Ct. 568; Swineford, 15 F.3d at 1270 (citing Czurlanis v. Albanese, 721 F.2d 98, 103 (3d Cir.1983)). The second and third stages of this analysis present questions for the fact finder and are not subject to review in this case. Green, 105 F.3d at 889 (recognizing second and third steps in Pickering/Mt. Healthy analysis are questions for fact finder); see also Watters, 55 F.3d at 892 n. 3; Zamboni v. Stamler, 847 F.2d 73, 79 n. 6, 80 (3d Cir.) (noting whether protected activity acted as substantial or motivating factor in discharge and whether same action would have been taken regardless are questions for jury), cert. denied, 488 U.S. 899, 109 S.Ct. 245, 102 L.Ed.2d 233 (1988); Johnson v. Lincoln Univ., 776 F.2d 443, 454 (3d Cir.1985) (holding “second and third questions ... should be submitted to the jury”). A. Matter Of Public Concern Our initial inquiry trains on whether Baldassare’s conduct in the investigation qualifies as a matter of public concern. Connick, 461 U.S. at 146, 103 S.Ct. 1684; Swineford, 15 F.3d at 1270-71. “A public employee’s speech involves a matter of public concern if it can ‘be fairly considered as relating to any matter of political, social or other concern to the community.’ ” Green, 105 F.3d at 885-86 (quoting Connick, 461 U.S. at 146, 103 S.Ct. 1684). In this respect, we focus on the content, form, and context of the activity in question. Connick, 461 U.S. at 147-48, 103 S.Ct. 1684; Watters, 55 F.3d" }, { "docid": "22828415", "title": "", "text": "Amendment retaliation case predicated on the institution of criminal proceedings even though the defendant had probable cause to initiate the proceedings. . Our cases indicate that a public employee’s claim for a protected activity, in this case free speech, should be analyzed in three steps: (1) was the activity protected; (2) was the protected activity a substantial or motivating factor in the alleged retaliatory action; (3) would the defendants have taken the same action even in the absence of the protected activity. See Fultz v. Dunn, 165 F.3d 215, 218 (3d Cir.1998), cert. denied, 527 U.S. 1006, 119 S.Ct. 2342, 144 L.Ed.2d 239 (1999); Latessa v. New Jersey Racing Comm’n, 113 F.3d 1313, 1319 (3d Cir.1997); Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir.1995). The plaintiff has the burden on the first two issues and if the third is reached the defendant has the burden on it. I have analyzed the case as including four steps as the second step includes two elements: did the defendants take an action adverse to the public employee and, if so, was the motivation for the action to retaliate against the employee for the protected activity. . In her brief Merkle indicates that \"[a] jury could give credence to the fact that [she] was subject to disparate treatment throughout the school year — subsequent to her speech at the board meeting and continued advocacy before the principal.\" Br. at 31. In support of this contention she cites her deposition. See app. at 139-40. There she testified to matters completely discrete from the First Amendment activity implicated here such as that she was \"written up” because of time she spent talking with a new student, she left work early, and she did not like an \"absurd schedule” that the school assigned her. . While it might be liable on some other basis no such issue is raised here." }, { "docid": "22828414", "title": "", "text": "indicated that in a section 1983 malicious prosecution action a plaintiff might not be required to establish all of the elements of the common law tort of malicious prosecution. See Gallo, 161 F.3d at 222 n. 6; but see Hilfirty v. Shipman, 91 F.3d 573, 579 (3d Cir.1996) (\"In order to state a prima facie case for a section 1983 claim of malicious prosecution, the plaintiff must establish the elements of the common law tort as it has developed over time.”). Nevertheless, inasmuch as the majority includes an analysis of whether the School Defendants had probable cause to initiate the criminal proceedings and the parties have briefed that issue, I, too, will analyze the case on that basis. In any event, I believe that ultimately the courts will hold that a person will not have committed the constitutional tort of malicious prosecution if he had probable cause to initiate the criminal proceedings leading to the civil action. On the other hand, however, depending on the facts developed, it would be possible to sustain a First Amendment retaliation case predicated on the institution of criminal proceedings even though the defendant had probable cause to initiate the proceedings. . Our cases indicate that a public employee’s claim for a protected activity, in this case free speech, should be analyzed in three steps: (1) was the activity protected; (2) was the protected activity a substantial or motivating factor in the alleged retaliatory action; (3) would the defendants have taken the same action even in the absence of the protected activity. See Fultz v. Dunn, 165 F.3d 215, 218 (3d Cir.1998), cert. denied, 527 U.S. 1006, 119 S.Ct. 2342, 144 L.Ed.2d 239 (1999); Latessa v. New Jersey Racing Comm’n, 113 F.3d 1313, 1319 (3d Cir.1997); Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir.1995). The plaintiff has the burden on the first two issues and if the third is reached the defendant has the burden on it. I have analyzed the case as including four steps as the second step includes two elements: did the defendants take an action adverse to the" }, { "docid": "2435847", "title": "", "text": "§ 1983, the Court must engage in a three-step analysis. Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir.2009) (citing Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir.2006)); Baldassare v. State of N.J., 250 F.3d 188, 195 (3d Cir.2001). First, the plaintiff must establish that the activity in question was protected. Baldassare v. State of N.J., 250 F.3d 188, 195 (3d Cir.2001) (citing Holder v. City of Allentown, 987 F.2d 188 (3d Cir.1993)). Here, Defendants do not challenge the fact that Plain tiffs speech was protected. (Docket No. 46 at 12-17). Second, the plaintiff is required to show that “the protected activity was a substantial or motivating factor in the alleged retaliatory action.” Id. (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Watters v. City of Philadelphia, 55 F.3d 886 (3d Cir.1995); Swineford v. Snyder County of Pa., 15 F.3d 1258, 1270 (3d Cir.1994)). Third, once a plaintiff has established these elements, the defendant-employer can then rebut the claim by demonstrating that, absent the protected conduct, it would have taken the same adverse action. Id. (citations omitted). See also Reilly v. City of Atlantic City, 532 F.3d 216 (3d Cir.2008) (quoting Springer v. Henry, 435 F.3d 268, 275 (3d Cir.2006)). A determination of whether a plaintiff has engaged in activity protected by the First Amendment is a question of law. Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir.2006); Baldassare, 250 F.3d at 195. Conversely, the questions of whether a plaintiffs protected activity was a substantial or motivating factor in the retaliatory action and whether the defendant would have taken adverse action absent the protected activity are questions of fact. Id.; Curinga v. City of Clairton, 357 F.3d 305, 310 (3d Cir.2004). Therefore, the Court is confined at this stage to determining whether, viewing the evidence of record in a light most favorable to Plaintiff, a reasonable fact-finder could determine that her engagement in protected activity was a substantial or motivating factor in the retaliatory conduct or whether Defendants would have" }, { "docid": "3556406", "title": "", "text": "first determine whether the plaintiff has alleged the deprivation of an actual constitutional right). The district court must then proceed to assess whether the right was “clearly established” at the time of the alleged violation, and whether the unconstitutional nature of the action would have been apparent to an objectively reasonable official. See Showers v. Spangler, 182 F.3d 165, 171-72 (3d Cir.1999). I have already concluded that there is a valid constitutional right at issue in this case. The very recent decision of the Court of Appeals for the Third Circuit in Baldassare leaves no question as to whether the constitutional right at issue here was clearly established: Defendants’ argument that Baldassare’s First Amendment rights were not clearly established cannot be sustained.... Some years ago, we recognized that “as of 1982 the law was ‘clearly established’ that a public employee could not be demoted in retaliation for exercising his rights under the first amendment.” Baldassare v. New Jersey, 250 F.3d 188, 201 (3d Cir.2001) (citing Green v. Phila. Hous. Auth., 105 F.3d 882 (3d Cir.), cert. denied, 522 U.S. 816, 118 S.Ct. 64, 139 L.Ed.2d 26 (1997); Watters v. City of Philadelphia, 55 F.3d 886 (3d Cir.1995); Feldman v. Philadelphia Hous. Auth., 43 F.3d 823 (3d Cir.1995); Holder v. City of Allentown, 987 F.2d 188 (3d Cir.1993); O’Donnell v. Yanchulis, 875 F.2d 1059 (3d Cir.1989); Czurlanis v. Albanese, 721 F.2d 98 (3d Cir.1983)). I conclude that the right asserted by Dooley was clearly established. Would a reasonable official have known that taking action against Dooley for that her testimony was unconstitutional? The “objectively reasonable” inquiry asks “whether a reasonable person could have believed the defendant’s actions to be lawful in light of clearly established law and the information he possessed.” Anderson, 483 U.S. at 641, 107 S.Ct. 3034. The Court of Appeals for the Third Circuit has stated that “a good faith belief in the legality of the conduct is not sufficient;” rather, the belief must be objectively reasonable. Parkhurst v. Trapp, 77 F.3d 707, 712 (3d Cir.1996). Normally, where the constitutional right at issue is found to be clearly" } ]

[ { "docid": "22080650", "title": "", "text": "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 injunction. So, too, did Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971), and Vance v. Universal Amusement Co., 445 U. S. 308 (1980) (per curiam), two other cases cited by petitioner. In Keefe, we vacated an order “enjoining petitioners from distributing leaflets anywhere in the town of Westchester, Illinois.” 402 U. S., at 415 (emphasis added). And in Vance, we struck down a Texas statute that authorized courts, upon a showing that obscene films had been shown in the past, to issue an injunction of indefinite duration prohibiting the future exhibition of films that have not yet been found to be obscene. 445 U. S., at 311. See also New York Times Co. v. United States, 403 U. S. 713, 714 (1971) (per curiam) (Government sought to enjoin publication of the Pentagon Papers). By contrast, the RICO forfeiture order in this case does not forbid petitioner to engage in any expressive activi ties in the future, nor does it require him to obtain prior approval for any expressive activities. It only" } ]

[ { "docid": "1480450", "title": "", "text": "lawless action and is likely to incite or produce such action. . The Supreme Court has long adhered to the principle that any system of prior restraint of expression bears a heavy presumption against its constitutional validity. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Heller v. New York, 413 U.S. 483, 491-92, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Carroll v. Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); Freedman v. Maryland, 380 U.S. 51, 57, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). See also Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). In Southeastern Promotions, Ltd. v. Conrad, supra, the Court further stated that: “The presumption against prior restraints is heavier — and the degree of protection broader — than that against limits on expression imposed by criminal penalties.” 420 U.S. at 558-59, 95 S.Ct. at 1246. . The numerous decisions in which the Supreme Court has found an insufficient basis for abridging First Amendment rights in a variety of contexts are instructive of the heavy burden which defendants must satisfy here. See Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973) (words advocating illegal action at some indefinite future time or having only a tendency to lead to violence insufficient); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (fear of violent public reaction to wearing of jacket bearing profane epithet on the draft insufficient); Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) (mere public intolerance or animosity insufficient; Street v. New York, 394 U.S. 576," }, { "docid": "6751074", "title": "", "text": "for labeling the present leaflet before the Court as commercial speech. B. An Injunction Would Constitute an Unconstitutional Prior Restraint The First Amendment to the U.S. Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend. I. Peaceful pamphleteering is a form of communication protected by the First Amendment. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). Cases addressing the First Amendment have defined a “prior restraint” as an administrative or judicial order that blocks expressive activity before it can occur. Polaris Amphitheater Concerts, Inc. v. City of Westerville, 267 F.3d 503, 506 (6th Cir.2001) (citing Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993)); see also Weaver v. Bonner, 309 F.3d 1312, 1323 (11th Cir.2002) (same). “Temporary restraining orders and permanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints.” Alexander, 509 U.S. at 550, 113 S.Ct. 2766; see also Polaris Amphitheater, 267 F.3d at 507 (“Injunctions are indeed at the ‘core of the prior restraint doctrine.’ ”). “Any prior restraint on expression comes ... with a ‘heavy presumption’ against its constitutional validity.” Keefe, 402 U.S. at 419, 91 S.Ct. 1575; see also County Security Agency v. Ohio Dep’t of Commerce, 296 F.3d 477, 485 (6th Cir.2002). “Indeed, prior restraints are ‘the most serious and the least tolerable infringement on First Amendment rights.’ ” Metropolitan Opera Ass’n v. Local 100, Hotel Employees and Restaurant Employees Int’l Union, 239 F.3d 172, 176 (2d Cir.2001). When a prior restraint takes the form of a court-issued injunction, the risk of infringing on speech protected under the First Amendment increases. An injunction must be obeyed until modified or dissolved, and its unconstitutionality is no defense to disobedience.... In contrast, a “criminal penalty or a judgment in a defamation case" }, { "docid": "16653545", "title": "", "text": "did not apply. The district court held in the alternative that even if the conflict were a “labor dispute,” the Norris-LaGuardia Act’s “unlawful acts” exception permitted the injunction. See 29 U.S.C. § 107. Finding no barrier to an injunction under the NLA, the district court concluded that a preliminary injunction was necessary to prohibit the Union from defaming, harassing or threatening the Met, and that such an injunction would not violate the First Amendment, because it aimed “to redress a private wrong and not to suppress public opinion.” Finally, the district court held the Union in civil contempt of the TRO, based upon multiple leaflets, letters, and actions taken by the Union subsequent to the May 4 TRO that the district court found defamatory or harassing. DISCUSSION The Union argues that we should vacate this injunction because it constitutes an impermissible prior restraint under the First Amendment and traditional libel law, and because it is impermissibly vague in failing to distinguish permissible from prohibited speech. We agree that the injunction presents serious questions under the First Amendment and libel law, but find it unnecessary to ultimately determine these issues because we hold that the injunction must be vacated as its scope and meaning are unclear. When considering the validity of this injunction under the First Amendment, we have “an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Bose Corp. v. Consumers Union, 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (quoting New York Times v. Sullivan, 376 U.S. 254, 284-86, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). The preliminary injunction here plainly constitutes a broad prior restraint on speech. It prohibits the Union from: engaging in fraudulent or defamatory representations regarding the MET and/or its donors, directors, officers and/or patrons; and ... threatening or harassing the MET and/or its donors, patrons, directors or officers; and ... blocking or otherwise obstructing or interfering in any manner with ingress to or egress from the Met.... A" }, { "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": "21627513", "title": "", "text": "granting a preliminary injunction essentially collapse into a determination of whether restrictions on First Amendment rights are justified to protect competing constitutional rights.” This court has noted that, in general, when a district court issues a TRO, it is to “review factors such as the party’s likelihood of success on the merits and the threat of irreparable injury,” but “[i]n the case of a prior restraint on pure speech, the hurdle is substantially higher: publication must threaten an interest more fundamental than the First Amendment itself.” Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 226-27 (6th Cir.1996). In reviewing a preliminary injunction with First Amendment implications, “the standard of review is different.” Id. at 227. “We review First Amendment questions de novo.” Id. Betzold argues that the SPI is a “prior restraint” on speech that violates his rights under the First Amendment. One type of prior restraint is a judicial order “forbidding certain communications when issued in advance of the time that such communications are to occur. Temporary restraining orders and permanent injunctions — i.e., court orders that actually forbid speech activities — -are classic examples of prior restraints.” Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993) (emphasis and citations omitted). The SPI prevents Betzold from disclosing “names and other information concerning security guards from the Department of Commerce.” Because the SPI restrains Betzold’s future speech, it is a prior restraint. “Any system of prior restraints of expression [bears] a heavy presumption against its constitutional validity,” and a party who seeks to have such a restraint upheld “thus carries a heavy burden of showing justification for the imposition of such a restraint.” New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam) (citations omitted). This burden, however, is not impossible to overcome. A prior restraint is permissible if the restrained speech poses “a grave threat to a critical government interest or to a constitutional right:” Procter & Gamble, 78 F.3d at 225, 227 (vacating two TROs and a permanent injunction" }, { "docid": "22399794", "title": "", "text": "as well, which are essentially ignored by the Court. To begin with, an injunction against speech is the very prototype of the greatest threat to First Amendment values, the prior restraint. As The Chief Justice wrote for the Court last Term: “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.’ . . . [Permanent injunctions, i. e., — court orders that actually forbid speech activities — are classic examples of prior restraints.” Alexander v. United States, 509 U. S. 544, 550 (1993) (quoting M. Nimmer, Nimmer on Freedom of Speech §4.03, p. 4-14 (1984) (emphasis added in Alexander)) See also 509 U. S., at 572 (“[T]he [prior restraint] doctrine... encompasses injunctive systems which threaten or bar future speech based on some past infraction”) (Kennedy, J., dissenting). We have said that a “prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity,” Organization for a Better Austin v. Keefe, 402 U. S. 415, 419 (1971) (quoting Carroll v. President and Comm’rs of Princess Anne, 393 U. S. 175, 181 (1968)), and have repeatedly struck down speech-restricting injunctions. See, e. g., Youngdahl v. Rainfair, Inc., 355 U. S. 131 (1957); Keefe, supra; New York Times Co. v. United States, 403 U. S. 713 (1971); Nebraska Press Assn. v. Stuart, 427 U. S. 539 (1976); National Socialist Party of America v. Skokie, 432 U. S. 43 (1977); Vance v. Universal Amusement Co., 445 U. S. 308 (1980) (statute authorizing injunctions); CBS Inc. v. Davis, 510 U. S. 1315 (1994) (Blackmun, J., in chambers) (setting aside state-court preliminary injunction against a scheduled broadcast). At oral argument neither respondents nor the Solicitor General, appearing as amicus for respondents, could identify a single speech-injunction case applying mere intermediate scrutiny (which differs little if at all from the Court’s intermediate-intermediate scrutiny). We have, in our speech-injunction cases, affirmed both requirements that characterize strict scrutiny: compelling public need and surgical precision of restraint. Even when (unlike in the present case) the First Amendment" }, { "docid": "5767675", "title": "", "text": "of 194 U.S.App.D.C., at 203 of 598 F.2d (emphasis in original). Similarly, the defendants aver that the order \"expires of course at the conclusion of the litigation.” Fed.Res.Br. at 33. Although it is reasonable to assume this is what the district court had in mind, there is no support for this in the record. By its terms, the order continues in effect “until modified or removed by subsequent express order of this Court.” See note 8 supra. . Accord, New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); Bantam Books v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). . Pittsburgh Press Co. v. Pittsburgh Comm. on Human Relations, 413 U.S. 376, 389 90, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973); Near v. Minnesota, 283 U.S. 697, 713 15, 51 S.Ct. 625, 75 L.Ed. 1357 (1931); Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp.Prob. 648, 650 (1955). . Under the standards laid down by the Court, the press may be restrained only when (1) pretrial publicity is likely to be so pervasive that it probably will have an effect on jurors; (2) there are no alternative methods of dealing with the problem through (a) change of venue, (b) postponement of the trial, (c) questioning jurors closely during voir dire, (d) clear instructions at trial, or (e) sequestration of the jury; and (3) the prior restraint will be effective. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562, 563 64, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). As one commentator has noted, “the practical impact of the rule announced by Chief Justice Burger is to outlaw all prior restraints in fair trial/free press cases.” Goodale, The Press Ungagged: The Practical Effect on Gag Order Litigation of Nebraska Press Association v. Stuart, 29 Stan.L.Rev. 497, 498 (1977). . An administrative" }, { "docid": "3113043", "title": "", "text": "in precisely the dimensions that the plaintiff requested.” 155 F.3d at 126-27. In - fact, Judge Kaplan did not issue such an injunc-lion. Instead, he merely granted an injunction prohibiting the City from relying on an unconstitutional permitting scheme as a basis for interfering with plaintiff's proposed event. 18 F.Supp.2d at 349. Under Judge Kaplan's injunction, the City was free to lawfully exercise its authority to address health, safety, and other concerns. Id. . Muhammad also filed an application for a rally at One Police Plaza the same day, but the application was later withdrawn. (Connolly Aff. ¶ 2 & Ex. E). . The reference to \"little cracker” was to the reporter who asked the question. . Significantly, here, according to MYM's counsel, a grand jury investigated Muhammad for the events at last year's rally and determined not to indict him. . “Any prior restraint on expression comes to [a court] with a 'heavy presumption' against its constitutional validity,” see Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971), and, indeed, prior restraints on speech are universally condemned as unconstitutional. See, e.g., id. at 418-20, 91 S.Ct. 1575 (holding as unconstitutional prior restraint injunction granted by Illinois court that prohibited group from passing out handbills anywhere in a town where the group had sought to distribute information about a real estate agent they thought was engaging in racially inflammatory practices); Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175, 180-81, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968) (relying on prior restraint doctrine to invalidate a state court injunction barring controversial rally near the steps of a town courthouse). . As to the City’s argument that Muhammad’s recent statements that MYM would march, with or without a permit, constitute a basis for denying the permit, Judge Kaplan rejected this argument last year, see MYM I, 18 F.Supp.2d at 340-41, and the Second Circuit did not disturb that ruling. For the reasons set forth in Judge Kaplan’s decision, I reject the argument as well." }, { "docid": "15894237", "title": "", "text": "even if they had violated those laws, the 2000 Injunction unconstitutionally restricts their First Amendment rights. Thus, the first part of our discussion reviews the District Court’s determination that the plaintiffs are likely to establish that defendants Melfi and Warren violated F.A.C.E. or the state laws prohibiting public nuisance and trespass. The second part of the discussion employs well-established First Amendment principles to assess the validity of the terms of the injunction. We review a district court’s issuance of a preliminary injunction for abuse of discretion. See Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 167 (2d Cir.2001). A district court commits an abuse of discretion when “it base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). In cases raising First Amendment issues, however, “an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 284-286, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). “[A] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948) (emphasis omitted)). The appellate court must also be vigilant for errors of law that “may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law.” Id. at 501, 104 S.Ct. 1949. I. Availability op Injunctive Relief A. Mary Melfi We begin by reviewing the District Court’s finding that Mary Melfi likely violated F.A.C.E., and that" }, { "docid": "479556", "title": "", "text": "to post signs in support of his future candidacy for mayor and therefore had standing to challenge it. . The district court’s consolidation of Lusk's request for a preliminary injunction with his request for a permanent injunction, see Lusk, 418 F.Supp.2d at 317-18, was therefore appropriate. . The district court referred to Chapter 64 as a prior restraint. See Lusk, 418 F.Supp.2d at 328. . \"The common law’s hostility to prior restraints [based on the English licensing practices] did not necessarily extend to injunctions .... Only later, with the expansion of equity jurisdiction and the emergence of injunctive relief as a common remedy, was the concept of prior restraint applied to judicial prohibitions against publication.” Franklin et al., supra, at 90. For at least the past half-century, however, the term \"prior restraint” has often been associated with court-imposed injunctions on expression, as opposed to legislative licensing schemes such as the one before us here. See, e.g., Neb. Press Ass’n, 427 U.S. at 556, 96 S.Ct. 2791; N.Y. Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (the “Pentagon Papers Case”); Org. for a Better Austin, 402 U.S. at 419, 91 S.Ct. 1575; Carroll, 393 U.S. at 181, 89 S.Ct. 347. Unlike licensing statutes, an injunction against speech is nearly always unconstitutional. See, e.g., Pentagon Papers Case, 403 U.S. at 714, 91 S.Ct. 2140. One reason is that a licensing law such as Chapter 64, if unconstitutional, may be challenged by engaging in the forbidden conduct. An injunction against speech, by contrast, must ordinarily be obeyed on pain of contempt, see Walker v. City of Birmingham, 388 U.S. 307, 314, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967), even if it \" ‘cannot withstand the mildest breeze emanating from the Constitution,' ” United States v. Dickinson, 465 F.2d 496, 500-01 (5th Cir.1972) (citing Se. Promotions, Ltd. v. City of W. Palm Beach, 457 F.2d 1016, 1017 (5th Cir.1972) (Irving L. Goldberg, J.) (using the phrase to describe the constitutional propriety of a municipal licensing scheme)); Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 248" }, { "docid": "14029154", "title": "", "text": "Cir.2005); Metro. Opera Ass’n, Inc. v. Local 100, Hotel Employees and Rest. Employees Int'l Union, 239 F.3d 172, 176 (2d Cir.2001); In re G. & A. Books, Inc., 770 F.2d 288, 295-96 (2d Cir.1985); see also Alexander, 509 U.S. at 566-72, 113 S.Ct. 2766 (Kennedy, J., dissenting) (discussing the distinction between prior restraints and subsequent punishments and the utility of that distinction). It has long been established that such restraints constitute “the most serious and the least tolerable infringement” on our freedoms of speech and press. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); see also Tunick v. Safir, 209 F.3d 67, 91 (2d Cir.2000) (quoting Nebraska Press, 427 U.S. at 559, 96 S.Ct. 2791). Indeed, the Supreme Court has described the elimination of prior restraints as the “ ‘chief purpose’ ” of the First Amendment. Gannett Co. v. DePasquale, 443 U.S. 368, 393 n. 25, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) (quoting Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 713, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)); see also Nebraska Press, 427 U.S. at 557, 96 S.Ct. 2791 (“ ‘The main purpose of the First Amendment is to prevent all such previous restraints upon publications as had been practiced by other governments.’ ” (brackets, emphasis and further internal quotation marks omitted) (quoting Patterson v. Colorado ex rel. Attorney Gen., 205 U.S. 454, 462, 27 S.Ct. 556, 51 L.Ed. 879 (1907))). Any imposition of a prior restraint, therefore, bears “a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); United States v. Salameh, 992 F.2d 445, 446-47 (2d Cir.1993) (per curiam). Moreover, because a “ ‘responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field,’ ” the protection against prior restraint carries particular force in the reporting of criminal proceedings. Nebraska Press, 427 U.S. at 559-60, 96 S.Ct. 2791 (quoting Sheppard v. Maxwell, 384 U.S. 333, 350, 86 5.Ct. 1507, 16 L.Ed.2d 600 (1966)). A prior" }, { "docid": "14029153", "title": "", "text": "where “(1) the challenged action was in duration too short to be fully litigated pri- or to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again.” Id. (alterations, citation and internal quotation marks omitted). We agree with appellants that the order at issue in this case was too short in duration to be fully litigated prior to its expiration, and that there is a reasonable expectation that these same appellants will face a similar restrictive order in the future. B. Turning to the merits, we discuss first the doctrine of prior restraints. A “prior restraint” on speech is a law, regulation or judicial order that suppresses speech — or provides for its suppression at the discretion of government officials — on the basis of the speech’s content and in advance of its actual expression. See Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993); Hobbs v. County of Westchester, 397 F.3d 133, 148 (2d Cir.2005); Metro. Opera Ass’n, Inc. v. Local 100, Hotel Employees and Rest. Employees Int'l Union, 239 F.3d 172, 176 (2d Cir.2001); In re G. & A. Books, Inc., 770 F.2d 288, 295-96 (2d Cir.1985); see also Alexander, 509 U.S. at 566-72, 113 S.Ct. 2766 (Kennedy, J., dissenting) (discussing the distinction between prior restraints and subsequent punishments and the utility of that distinction). It has long been established that such restraints constitute “the most serious and the least tolerable infringement” on our freedoms of speech and press. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); see also Tunick v. Safir, 209 F.3d 67, 91 (2d Cir.2000) (quoting Nebraska Press, 427 U.S. at 559, 96 S.Ct. 2791). Indeed, the Supreme Court has described the elimination of prior restraints as the “ ‘chief purpose’ ” of the First Amendment. Gannett Co. v. DePasquale, 443 U.S. 368, 393 n. 25, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) (quoting Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 713, 51" }, { "docid": "479557", "title": "", "text": "714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (the “Pentagon Papers Case”); Org. for a Better Austin, 402 U.S. at 419, 91 S.Ct. 1575; Carroll, 393 U.S. at 181, 89 S.Ct. 347. Unlike licensing statutes, an injunction against speech is nearly always unconstitutional. See, e.g., Pentagon Papers Case, 403 U.S. at 714, 91 S.Ct. 2140. One reason is that a licensing law such as Chapter 64, if unconstitutional, may be challenged by engaging in the forbidden conduct. An injunction against speech, by contrast, must ordinarily be obeyed on pain of contempt, see Walker v. City of Birmingham, 388 U.S. 307, 314, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967), even if it \" ‘cannot withstand the mildest breeze emanating from the Constitution,' ” United States v. Dickinson, 465 F.2d 496, 500-01 (5th Cir.1972) (citing Se. Promotions, Ltd. v. City of W. Palm Beach, 457 F.2d 1016, 1017 (5th Cir.1972) (Irving L. Goldberg, J.) (using the phrase to describe the constitutional propriety of a municipal licensing scheme)); Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 248 (7th Cir.1975) (noting that “[normally a 'prior restraint’ constitutes a predetermined judicial prohibition restraining specified expression and it cannot be violated even though the judicial action is unconstitutional if opportunities for appeal existed and were ignored”) (citing Walker, 388 U.S. at 307, 87 S.Ct. 1824). But see In the Matter of Providence Journal Co., 820 F.2d 1354, 1355 (1st Cir.1987) (en banc) (per curiam) (concluding that a publisher may publish despite a \"transparently unconstitutional order of prior restraint” against the publication if the publisher first \"make[s] a good faith effort to seek emergency relief from the appellate court”), cert, granted sub nom. United States v. Providence Journal Co., 484 U.S. 814, 108 S.Ct. 65, 98 L.Ed.2d 28 (1987), cert. dismissed on other grounds, 485 U.S. 693, 108 S.Ct. 1502, 99 L.Ed.2d 785 (1988). Moreover, unlike licensing laws, injunctions are generically suspect because they are typically content based while licensing laws often are not. See Franklin et al., supra, at 91. Relatedly, injunctions, unlike the denial of a license, may be expected to prohibit all publication" }, { "docid": "16653546", "title": "", "text": "First Amendment and libel law, but find it unnecessary to ultimately determine these issues because we hold that the injunction must be vacated as its scope and meaning are unclear. When considering the validity of this injunction under the First Amendment, we have “an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Bose Corp. v. Consumers Union, 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (quoting New York Times v. Sullivan, 376 U.S. 254, 284-86, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). The preliminary injunction here plainly constitutes a broad prior restraint on speech. It prohibits the Union from: engaging in fraudulent or defamatory representations regarding the MET and/or its donors, directors, officers and/or patrons; and ... threatening or harassing the MET and/or its donors, patrons, directors or officers; and ... blocking or otherwise obstructing or interfering in any manner with ingress to or egress from the Met.... A “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." }, { "docid": "20620683", "title": "", "text": "they asked us for a remand to allow the judge to fill the gaps. I see no reason to order this remedy sua sponte. More fundamentally, the question whether an injunction is permissible at all in this context is a sensitive and difficult matter of First Amendment law. A court order permanently enjoining future speech is a prior restraint and as such is presumptively unconstitutional. Any prior restraint comes to us “bearing a heavy presumption against its constitutional validity,” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963), and “permanent injunctions— i.e., court orders that actually forbid speech activities — are classic examples of prior restraints” because they impose a “true restraint on future speech,” Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993). As the Supreme Court explained in its seminal case condemning prior restraints, an injunction against future speech — making any publication of the suppressed speech punishable as contempt — is “the essence of censorship.” Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Consistent with this bedrock free-speech principle, the traditional rule in defamation law is that “equity does not enjoin a libel or slander[;] ... the only remedy for defamation is an action for damages.” e360 Insight v. The Spamhaus Project, 500 F.3d 594, 606 (7th Cir.2007) (quotation marks omitted); see also Metro. Opera Ass’n, Inc. v. Local 100, Hotel Emps. & Rest. Emps. Int’l Union, 239 F.3d 172, 177 (2d Cir.2001); Kramer v. Thompson, 947 F.2d 666, 677 (3d Cir.1991); Comm. for Creative Non-Violence v. Pierce, 814 F.2d 663, 672 (D.C.Cir.1987). This rule “has enjoyed nearly two centuries of widespread acceptance at common law.” Kramer, 947 F.2d at 677; see also Erwin Chemerinsky, Injunctions in Defamation Cases, 57 Syracuse L.Rev. 157, 167-68 (2007); Michael I. Myerson, The Neglected History of the Prior Restraint Doctrine: Rediscovering the Link Between the First Amendment and the Separation of Powers, 34 Ind. L.Rev. 295, 308-22 (2001). The Supreme Court has not yet directly addressed whether injunctive relief" }, { "docid": "20620684", "title": "", "text": "rel. Olson, 283 U.S. 697, 713, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Consistent with this bedrock free-speech principle, the traditional rule in defamation law is that “equity does not enjoin a libel or slander[;] ... the only remedy for defamation is an action for damages.” e360 Insight v. The Spamhaus Project, 500 F.3d 594, 606 (7th Cir.2007) (quotation marks omitted); see also Metro. Opera Ass’n, Inc. v. Local 100, Hotel Emps. & Rest. Emps. Int’l Union, 239 F.3d 172, 177 (2d Cir.2001); Kramer v. Thompson, 947 F.2d 666, 677 (3d Cir.1991); Comm. for Creative Non-Violence v. Pierce, 814 F.2d 663, 672 (D.C.Cir.1987). This rule “has enjoyed nearly two centuries of widespread acceptance at common law.” Kramer, 947 F.2d at 677; see also Erwin Chemerinsky, Injunctions in Defamation Cases, 57 Syracuse L.Rev. 157, 167-68 (2007); Michael I. Myerson, The Neglected History of the Prior Restraint Doctrine: Rediscovering the Link Between the First Amendment and the Separation of Powers, 34 Ind. L.Rev. 295, 308-22 (2001). The Supreme Court has not yet directly addressed whether injunctive relief is a constitutionally permissible remedy for defamation, but the general equitable rule accords with the Court’s prior-restraint jurisprudence dating back to Near, which invalidated a Minnesota statute that permitted the issuance of temporary and permanent injunctions against persons and organizations engaged in the publication of defamatory newspapers, magazines, or other periodicals. 283 U.S. at 702, 723, 51 S.Ct. 625; see id. at 712, 51 S.Ct. 625 (“[Sjuppression is accomplished by enjoining publication, and that restraint is the object and effect of the statute.”). An emerging modern trend, however, acknowledges the general rule but allows for the possibility of narrowly tailored permanent injunctive relief as a remedy for defamation as long as the injunction prohibits only the repetition of the specific statements found at trial to be false and defamatory. See Hill v. Petrotech Res. Corp., 325 S.W.3d 302, 308-09 (Ky.2010); Balboa Island Vill. Inn, Inc. v. Lemen, 40 Cal.4th 1141, 57 Cal.Rptr.3d 320, 156 P.3d 339, 347-49 (2007); Sid Dillon Chevrolet v. Sullivan, 251 Neb. 722, 559 N.W.2d 740, 746-47 (1997); Advanced Training Sys., Inc." }, { "docid": "9482393", "title": "", "text": "movements during time of war, to prevent the publication of obscene material, and to prevent the overthrow of the government. Id. at 716, 51 S.Ct. 625. Although the prohibition against prior restraints is by no means absolute, the gagging of publication has been considered acceptable only in “exceptional cases.” Even where questions of allegedly urgent national security, or competing constitutional interests, are concerned, we have imposed this “most extraordinary remedy” only where the evil that would result from the reportage is both great and certain and cannot be militated by less intrusive measures. CBS v. Davis, 510 U.S. 1315, 1317, 114 S.Ct. 912, 127 L.Ed.2d 358 (1994). The broad parameters of the prior restraint doctrine were further explained in the Pentagon Papers case, New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). There, the federal government sought to enjoin The New York Times and The Washington Post from publishing a classified study on U.S. policy-making in Vietnam. The Vietnam conflict was ongoing, and the government argued that the publication of the classified information might damage the national interest. The Court observed that, because any prior restraint on speech is presumptively invalid under the First Amendment, the government bore a heavy burden of showing a justification for the restraint. Finding that the government had not met its burden, the Court denied the injunction. Id. at 714, 91 S.Ct. 2140. The government failed to demonstrate that the injury to the national interest was both great and certain to occur. 403 U.S. at 730, 91 S.Ct. 2140 (Stewart, J., concurring); 403 U.S. at 731, 91 S.Ct. 2140 (White, J., concurring). The Sixth Circuit has recently applied the prior restraint doctrine to overturn an injunction against the publication of trade secrets and other confidential material in Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir.1996). Procter & Gamble and Bankers Trust were parties to civil litigation and had stipulated to the entry of a protective order, which prohibited disclosure of trade secrets and other confidential documents obtained during the discovery process. A" }, { "docid": "19873422", "title": "", "text": "subsequent prohibition of the activity would appear to constitute a content-based prior restraint. In Alexander v. United States, 509 U.S. 544, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993), the Supreme Court stated: 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, [citation omitted]. Id. at 550, 113 S.Ct. at 2771. Such restraints on otherwise protected expression are heavily disfavored, both for their immediate effect in barring the protected speech at issue as well as for their “chilling effect” on prospective protected speech. See Alexander, supra at 572, 113 S.Ct. at 2782-83 (Kennedy J., dissenting); Vance v. Universal Amusement Co., 445 U.S. 308, 317, 100 S.Ct. 1156, 1162, 63 L.Ed.2d 413 (1980) (per curiam); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577-78, 29 L.Ed.2d 1 (1971); and Bantam Books Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963). While such a sweeping restriction might be acceptable were it necessary to maintain good order within the schools, the plaintiffs have not demonstrated that the dissemination of Bibles would materially and substantially interfere with operations of the Upshur County schools or the substantive rights of their students to an education. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 508—509, 89 S.Ct. 733, 737-738, 21 L.Ed.2d 731 (1969). Instead, plaintiffs’ argument for restoration of the injunction pending appeal relies solely on the content of the speech, and its potential to deprive students, particularly younger students attending Upshur County’s elementary and middle schools, of their first amendment protection against government establishment of religion. They are concerned that younger students may misapprehend the neutral role of the schools in the planned Bible dissemination. Protection of this interest, however, does not demand the complete prohibition of all religious speech" }, { "docid": "23232305", "title": "", "text": "expression and speech must be subjected by the courts to the closest scrutiny. See generally Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), and Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). This principle has been expressed by the Supreme Court in a variety of ways. To justify imposition <->f a prior restraint, the activity restrained must pose a clear and present danger, or a serious or imminent threat tó a protected competing interest. Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962), and Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947). A system of prior restraints of expression bears a heavy presumption ¿gainst its constitutional validity. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Southeastern Promotions, Ltd. v. Conrad, supra. Hence, the government carries a heavy burden of showing a justification for its imposition. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); and see New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). The restraint must be narrowly drawn and cannot be upheld if reasonable alternatives are available having a lesser impact on First Amendment freedoms. Carroll v. President & Commissioners of Princess Anne, 393 U.S. 175, 183, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). In Chase v. Robson, 435 F.2d 1059 (1970), the Court of Appeals for the Seventh Circuit ordered the issuance of a writ of mandamus directing the district court to vacate its order in a pending criminal case which read as follows: It is further ordered that counsel for both the Government and the defendants, as well as each and every defendant herein, make or issue no statements, written or oral, either at a public meeting or occasion, or for public reporting or dissemination in any fashion, regarding the jury or jurors in" }, { "docid": "22822957", "title": "", "text": "are armed with the essential weapon for combating smuggling and escape plans. Under the TDC’s proposed rule it would evaluate correspondents against their likelihood of impinging on Martinez interests before any mail passed between the prisoner and the correspondent. Such a rule inherently encourages censorship based upon speculation. Martinez teaches that the limitations on first amendment freedoms must be no greater than is essential to the protection of the particular interest involved and that a regulation that furthers an important or substantial government interest will nevertheless be invalid if its sweep is unnecessarily broad. 416 U.S. at 412-14; 94 S.Ct. at 1811. Because TDC would determine the right to send or receive mail before any letters had been written, no precise standards would exist for determining whether an individual posed a threat to Martinez interests. The standards available to prison officials, such as membership in radical political groups, are not a permissible guide. TDC’s decision to interrupt the communication process before any letters are sent or received is somewhat akin to a prior restraint. Any prior restraint on expression comes to a court with a heavy presumption against its constitutional validity. Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); New York Times v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968). Prior restraints are generally decried because they tend to chill first amendment freedom of expression; in the same manner, a prior approval rule has an adverse effect on the right of the correspondent to advocate in other forums ideas not popular with prison officials. We think that the record contains sufficient support for the district judge’s conclusion that the prior approval of correspondents by TDC officials was not essential to the state’s interest in security, order or rehabilitation. TDC’s proposed rules would also permit a numerical restriction to be imposed on inmate mail and permit prison officials to censor both incoming and outgoing general correspondence. The numerical restriction is advanced" } ]

[ { "docid": "7145375", "title": "", "text": "was left unresolved or that the plaintiff had not met her burden of proof. He ultimately concluded, “What is clear, however, is that the plaintiff has failed to make the requisite showing of irreparable harm,” id. at 18 (emphasis added). Since we conclude that this core ruling on irreparable injury warrants further consideration by the District Court, we prefer not to assess the probability of success on the merits at this stage and instead permit the District Judge to clarify his ruling on this point, in the event that, upon remand, he should conclude that irreparable injury warranting a preliminary injunction has been shown. With respect to irreparable injury, an absolute requirement for a preliminary injunction, Triebwasser & Katz v. American Telephone & Telegraph Co., 535 F.2d 1356, 1359 (2d Cir.1976), we agree with Judge Zampano that the requisite irreparable harm is not established in employee discharge cases by financial distress or inabili ty to find other employment, unless truly extraordinary circumstances are shown. Sampson v. Murray, 415 U.S. 61, 91-92 & n. 68, 94 S.Ct. 937, 953 & n. 68, 39 L.Ed.29 166 (1974); EEOC v. City of Janesville, 630 F.2d 1254, 1259 (7th Cir.1980). However, the claim in this case is not simply that an employee has been discharged and thereby has suffered injuries normally compensable by money. In addition, the plaintiff asserts that the discharge was in retaliation for her prior claim of a Title VII violation by her employer. A retaliatory discharge carries with it the distinct risk that other employees may be deterred from protecting their rights under the Act or from providing testimony for the plaintiff in her effort to protect her own rights. These risks may be found to constitute irreparable injury. We do not, however, accept the EEOC’s suggestion that there is irreparable injury sufficient to warrant a preliminary injunction in every retaliation case — a view that has been rejected by the Sixth Circuit even when the EEOC was plaintiff and there was testimony that five employees would be “chilled” in testifying in plaintiff’s favor. EEOC v. Anchor Hocking Corp., 666" } ]

[ { "docid": "19835898", "title": "", "text": "serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting preliminary relief. See Citibank, N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir.1985) (quoting Bell & Howell: Mamiya Co. v. Mosel Supply Co., Corp., 719 F.2d 42, 45 (2d Cir.1983) (quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979))). II. Irreparable Harm As an initial matter, the Court finds that plaintiff has adequately demonstrated the potential for irreparable harm. “ ‘The loss of-First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ ” Gay Veterans Association, Inc. v. American Legion, 621 F.Supp. 1510, 1515 (S.D.N.Y.1985) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976)). In the absence of an injunction, the plaintiff will not be able to conduct its protest parade on 5th Avenue on St. Patrick’s Day and thus will not be able to declare its message. Such an injury will be irreparable. The issue for the Court to determine therefore is whether plaintiff can demonstrate a likelihood of success on the merits, or sufficiently serious questions on the merits with the balance of hardships tilting in plaintiff’s favor. III. The Merits There is no question that ILGO has a First Amendment right to proclaim its message of pride in its Irish cultural heritage and in its homosexuality. But this right is not absolute. See Olivieri v. Ward, 801 F.2d 602, 605 (2d Cir.1986), cert. denied, 480 U.S. 917, 107 S.Ct. 1371, 94 L.Ed.2d 687 (1987); Concerned Jewish Youth v. McGuire, 621 F.2d 471, 473 (2d Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1352, 67 L.Ed.2d 337 (1981). First Amendment rights are subject to reasonable time, place and manner restrictions to further significant government interests. See Olivieri, 801 F.2d at 605. It is axiomatic that a restriction on First Amendment rights must: (1) be content-neutral, (2) be narrowly tailored to meet a significant governmental interest, and (3) leave open ample alternative means of communication. Olivieri, 801" }, { "docid": "5069585", "title": "", "text": "the one named plaintiff who was still a student at the time of the decision. With the benefit of several thorough and highly pertinent decisions from Judge Muir and the Third Circuit in hand, we turn to the motion now before this Court. III. To obtain a preliminary injunction in this Circuit, the movant must show “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir.1979). Phillips v. Marsh, 687 F.2d 620 (2d Cir.1982). Mov ants’ burden is generally considered enhanced when the injunction sought would change the status quo. See, Holy Spirit Assn., Etc. v. Town of New Castle, 480 F.Supp. 1212, 1214 (S.D.N.Y.1979) (“The purpose of the preliminary injunction is to preserve the status quo between the parties pending a full hearing on the merits”); Patterson v. United Fed. of Teachers, 480 F.Supp. 550, 553 (S.D.N.Y.1979). The requirement of “irreparable harm” is satisfied in this case by the very nature of the claim. In Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976), the Supreme Court held that “(t)he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Since plaintiffs have alleged deprivation of their First Amendment rights, irreparable harm must be presumed. See, Intern. Soc. for Krishna, Etc. v. City of N.Y., 484 F.Supp. 966, 970-71 (S.D.N.Y.1979); NY-PIRG v. Village of Roslyn Estates, 498 F.Supp. 922, 930 (E.D.N.Y.1979); St. Martin’s Press, Inc. v. Carey, 440 F.Supp. 1196, 1204 (S.D.N.Y.1977); see also, Katz v. McAulay, 438 F.2d 1058, 1060 n. 3 (2d Cir.1971). The next prong of the preliminary injunction standard, “likelihood of success on the merits”, involves the Court in evaluating the merits of plaintiffs’ claims. Clearly the claim of deprivation of first amendment speech rights is the most substantial ground for challenging the university regulation, and that" }, { "docid": "2361038", "title": "", "text": "Censor] ... to stop using [by February 14, 1986] all DSI proprietary software, including, without limitation, the Project Management and Operations Management programs which run on Alpha Micro computers.” (Def.’s Ex. E). On February 12, 1986, Censor wrote back and asserted that the software belonged to PCI, not DSI. Shortly thereafter, obviously in anticipation of litigation, DSI filed registration statements with the United States Copyright Office for the “Operations Management Simulation Source Code” (Pi’s Ex. 6) and the “Project Management Simulation/Game Source Code” (Pi’s Ex. 7). Both filings were accepted, effective February 24, 1986. The instant action was filed March 13, 1986. II. Discussion In this Circuit, a party moving for a preliminary injunction must show (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. E.g., Jackson Dairy, Inc. v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir.1979). A. Irreparable Harm In cases of alleged copyright infringement, irreparable harm may ordinarily be presumed to follow from invasion of the “ ‘right to the exclusive use of the copyrighted material.’ ” Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1094 (2d Cir.1977) (quoting American Metropolitan Enterprises of New York v. Warner Brothers’ Records, Inc., 389 F.2d 903, 905 (2d Cir.1968)). See also Russ Berrie & Co. v. Jerry Elsner Co., 482 F.Supp. 980, 982 n. 2 (S.D.N.Y.1980). I believe that plaintiff here satisfies the irreparable harm requirement even without the benefit of this presumption. As I stated in my Memorandum Opinion and Order dated March 13,1986, “[i]f plaintiff owns these copyrighted computer programs, as it alleges, defendant’s continued use of them is infringing. I do not see how plaintiff could quantify the damages resulting from a wrongful deprivation of its economic leverage as sole lawful licensor.” I adhere to my view that this is sufficient to satisfy the irreparable harm requirement. Defendants contend that DSI has brought this evil upon itself" }, { "docid": "21101998", "title": "", "text": "failed to demonstrate irreparable harm and because Jayaraj would have an adequate remedy at law for any violation which may have occurred. The court rejected Jayaraj’s argument that he had a right to a pretermination hearing in order to vindicate his First Amendment rights. As to Jayaraj’s due process claim, however, the district court found that Jayaraj would suffer irreparable injury based on a variety of asserted potential harms which would result from his non-employment by the City pending disposition of his case. Discussion I. Preliminary Injunction The issuance of a preliminary injunction rests within the sound discretion of the district court and will be disturbed only where there has been an abuse of that discretion or a clear mistake of law. Triebwasser & Katz v. American Tel. & Tel. Co., 535 F.2d 1356, 1358 (2d Cir.1976). To obtain a preliminary injunction, the moving party has the burden of showing 1) irreparable harm and 2) either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them fair grounds for litigation and a balance of hardships tilting decidedly towards the plaintiff. Loveridge v. Pendleton Woolen Mills, Inc., 788 F.2d 914, 916 (2d Cir.1986). Because we hold that Jayaraj failed to establish that he would suffer irreparable harm in the absence of an injunction, there is no need to reach the second portion of the preliminary injunction analysis. Perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered. Citibank N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir.1985) (internal quotations omitted). Irreparable harm “means injury for which a monetary award cannot be adequate compensation.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). [I]t seems clear that the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury.... The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money," }, { "docid": "15216952", "title": "", "text": "of credit....” 31 C.F.R. § 535.504(b)(3)(i) (1983). As the “supplementary information” accompanying this regulation makes clear, the purpose of the regulation “is to preserve the status quo by continuing to allow U.S. account parties to obtain preliminary injunctions or other temporary relief to prevent payment on standby letters of credit....” 47 Fed.Reg. 29,529 (1982). Although Iran is currently challenging the validity of this regulation before the Tribunal at least until such time as that body rules, precedent, see, e.g., Kolovrat v. Oregon, 366 U.S. 187, 194-95, 81 S.Ct. 922, 926, 6 L.Ed.2d 218 (1961), as well as prudence, counsel deference to the Executive’s view that preliminary injunctive relief is not inconsistent with the agreement establishing the Tribunal. Having determined that the district court had the authority to grant the preliminary injunction, we next address whether it properly did so in this case. In this circuit a movant must make a “showing of (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly” in its favor. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam). We turn first to the question of irreparable harm. 1. Irreparable Harm Tejarat and Citibank argue that Rockwell has failed to show that in the absence of an injunction it would suffer irreparable harm because it could seek recovery either in a claim filed with the Tribunal or in a suit filed wherever Iran has assets subject to attachment. The defendants also argue that the plaintiff is not entitled to injunctive relief since “[a]ll that Rockwell has at stake is money,” Citibank Br. at 18, and the availability of a remedy at law precludes a finding of irreparable injury. Although it is true that Rockwell, as the moving party, bears the burden of proving irreparable injury, see, e.g., Robert W. Stark, Jr. Inc. v. New York Stock Exchange, Inc., 466 F.2d 743, 744 (2d Cir.1972) (per curiam), we do not think" }, { "docid": "18075563", "title": "", "text": "balance of hardships tipped decidedly in Arrow’s favor because any harm to Richards brought about by the injunction could be compensated by money damages, while in the absence of an injunction Arrow might suffer “the irreparable harm of loss of good will which is not compensable in money damages.” A written order was filed on February 22, enjoining Richards, as requested, (1) from “directly or indirectly displaying to potential customers a product of Plaintiff which bears an indicia [sic] of manufacture by Defendant Hugh Richards, or which is displayed in such manner as to create the impression that it is a product of Defendant Hugh Richards”; and (2) from “filling any orders for the ‘Uni-Foil’ for which samples were received by the New York City Transit Authority in about August 1981, or at any time thereafter.” Richards appeals from this order, contending principally that Arrow would not have been irreparably harmed had no preliminary injunction issued and that the balance of hardships does not tip decidedly toward Arrow. We reject these contentions insofar as Richards has been enjoined from designating Arrow products as its own, but find merit in the contention that Arrow did not show a likelihood of irreparable injury absent an injunction against Richard’s performance of the subcontracts. DISCUSSION It is well-settled in this Circuit that a preliminary injunction may be granted only upon “a showing of (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Sperry International Trade, Inc. v. Government of Israel, 670 F.2d 8, 11 (2d Cir. 1982) (quoting Jackson Dairy, Inc. v. H. P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam)). If the moving party has established these elements, the granting of the injunction may be reversed only if the district court has abused its discretion. Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32, 95 S.Ct. 2561, 2567-68, 45 L.Ed.2d 648 (1975)" }, { "docid": "18910777", "title": "", "text": "of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation coupled with a balance of hardships tipping decidedly in its favor. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979); Mattel, Inc. v. Azrak-Hamway Intern, Inc., 724 F.2d 357, 359 (2d Cir.1983). In order to utilize the less onerous “serious questions” prong of the above standard, a plaintiff must make the additional showing that the hardships it will suffer if the injunction does not issue far outweigh the hardships which would be visited upon defendants if the injunction is granted. Stated simply, “the equities must strongly favor the issuance of an injunction.” Cavallaro by Cavallaro v. Ambach, 575 F.Supp. 171, 174 (W.D.N.Y.1983). In the instant action, plaintiff seeks to enjoin defendant from enforcing various regulations allegedly applicable to plaintiffs use of its premises for a religious nursery school on the ground that such enforcement violates both the Free Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The irreparable harm alleged is both constitutional and financial, the latter being the loss of approximately $15,000 in annual revenue from plaintiffs operation of a nursery school. Although this financial injury would appear to be wholly compensable in monetary damages, the constitutional deprivation alleged — the loss of religious freedom entailed in termination of “a nursery school that teaches a unique Hassidic tradition” (Pl.Reply Br. at 4) — presumably cannot be remedied monetarily. Even assuming however, that plaintiff could successfully demonstrate that, absent the issuance of a preliminary injunction, it would suffer irreparable constitutional injury, I am not satisfied that plaintiff has carried its burden with respect to the other essential predicate to injunctive relief: a likelihood of success on the merits or sufficiently serious questions going to the merits plus a decided tipping of the equities in plaintiffs favor. This is true with respect to both plaintiffs First and Fourteenth Amendment claims. Plaintiffs Free Exercise Claim In cases alleging violations of the Free Exercise Clause of the First" }, { "docid": "16108829", "title": "", "text": "Haitians had in the second amended complaint in the Florida Action. Moreover, the New York Action plaintiffs challenge conduct that was “not in existence at the time of the judgment in [the Florida Action] and could not have been extinguished by it.” Id. The district court found, and we agree, that the second interview procedures . outlined in the February 29, 1992 Rees memorandum constitutes a material change in the INS’ policy toward “screened in” Haitians from the INS’ previous policy of bringing “screened in” aliens to the United States for asylum proceedings. We conclude that the doctrine of collateral es-toppel does not apply to the “screened in” plaintiffs’ fifth amendment claims. Preliminary Injunction Our standard of review for the issuance of a preliminary injunction is whether such issuance constitutes an abuse of discretion. Applying legal standards incorrectly or relying upon clearly erroneous findings of fact may constitute an abuse of discretion. Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir.1991). “The standard for issuing a preliminary injunction is well-settled in this Circuit_ The party seeking the injunction must demonstrate (1) irreparable harm should the injunction not be granted, and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking injunc-tive relief.” Id.; see Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam). In the April 7 order, the district court found that the New York Action plaintiffs had demonstrated the threat of irreparable harm should the injunction not be granted and sufficiently serious questions as to the merits of their claims under the first and fifth amendment, and that the balance of the hardships tipped decidedly in their favor. In response to a motion by the New York Action defendants, the district court, on April 8, 1992, noted that it had applied the proper standard in granting the preliminary injunction. Nevertheless, the district court also found that the “likelihood of success on the merits” standard was met as well." }, { "docid": "10488257", "title": "", "text": "their identity may be obtained by defendants and revealed to others, such as family members. IV. CONCLUSIONS OF LAW A. Standing In Terry, the Second Circuit held that health care providers have independent standing to assert the rights of their patients to travel freely and to obtain abortion services. The court reasoned that a patient’s “enjoyment of those rights is inextricably bound up with the activity the litigant wishes to pursue,” and thus, the court could be “assured that the clinics represent the rights and interests of the women seeking their assistance.” Terry, 886 F.2d at 1348 (citations omitted). The court also held that “pro-choice” organizations have standing as representatives of their membership. Id. at 1349. B. Preliminary Injunction It is well-established in the Second Circuit that a preliminary injunction may be granted only where the movant establishes (1) irreparable harm (if the injunction is not granted), and (2) either (a) the likelihood of success on the merits, or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant’s favor. Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 972 (2d Cir.1989); Johnson v. Kay, 860 F.2d 529, 540 (2d Cir.1988); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). 1. Irreparable Harm “[A] finding of irreparable harm is an' absolute prerequisite to the issuance of an injunction....” Fireman’s Fund Ins. Co. v. Leslie & Elliot Co., 867 F.2d 150, 151 (2d Cir.1989). To establish irreparable harm, plaintiffs must demonstrate an injury that is neither remote nor speculative, but actual and imminent. The injury must be one requiring a remedy of more than mere money damages. A monetary loss will not suffice unless the movant provides evidence of damage that cannot be rectified by financial compensation. Tucker Anthony Realty Corp., 888 F.2d at 975 (citations omitted). A deprivation of constitutional rights that cannot be repaired by an award of damages constitutes irreparable injury. Abdul Wali v. Coughlin, 754 F.2d 1015, 1026 (2d Cir.1985); Mitchell v. Cuomo, 748 F.2d" }, { "docid": "2027628", "title": "", "text": "appearing daily in the New York Times and the Wall Street Journal. New letters from each side to the shareholders have been published this week. Additionally, many newspapers published articles and commentary on the election, and both sides made press statements. DISCUSSION Preliminary Injunction To obtain a preliminary injunction plaintiff must establish irreparable harm and either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor. See Mitchell v. Cuomo, 748 F.2d 804, 807-08 (2d Cir.1984); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam). Plaintiff argues that it will be irreparably harmed if the Court does not enjoin certification of a possible Committee victory. Plaintiff contends that if the dissidents are successful, they could take control of Pantry Pride and mismanage the company thereby jeopardizing the shareholders’ investment. Moreover, plaintiff maintains that once defendants take power, they would dismiss this action thereby causing securities violations to go unpunished. Plaintiff additionally contends that the personal interests motivating the proxy contest remain unrevealed. Although it is sympathetic to their position, the Court finds that plaintiff has not established irreparable harm; therefore, the motion for a preliminary injunction is denied. To establish irreparable harm plaintiff must show “the absence of an adequate remedy at law.” Buffalo Forge Co. v. Ampco-Pittsburgh Corp., 638 F.2d 568, 569 (2d Cir.1981). As defendants correctly observe, the Court has the power, if defendants’ proxies are ultimately found to be in violation of the securities laws, to set aside the election, order defendants to re-solicit proxies, or grant other necessary relief. See J.I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423 (1964). Moreover, if defendants win and attempt to dismiss the lawsuit, the Court can appoint a “trustee” to continue this action. If plaintiff is ultimately correct in its arguments and were to prevail at a subsequent court-ordered election, litigation expenses might be recoupable. Finally, plaintiff’s claims are" }, { "docid": "6012374", "title": "", "text": "the district court.. In addition, applying the body of law developed under 29 U.S.C. § 185, the analogue to 39 U.S.C. § 1208(b), see National Association of Letter Carriers, AFL-CIO v. Sombrotto, 449 F.2d 915, 918-19 (2d Cir.1971), the district court and NLRB have concurrent jurisdiction over suits to enforce labor contracts, even if the conduct involved might entail an unfair labor practice. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 561-63, 96 S.Ct. 1048, 1054-55, 47 L.Ed.2d 231 (1976). With regard to the statutory review procedures, as a “preference eligible” employee, Danko had the option of challenging his discharge through either the contractual arbitration process or the Civil Service’s review procedures. His choice of the contractual alternative barred his invocation of the statutory procedures. 5 U.S.C. § 7121(e)(1). Propriety of the Injunction Having determined that the district court had jurisdiction to issue preliminary injunc-tive relief, we conclude that the district court nevertheless abused its discretion in awarding an injunction under the facts and circumstances of this case. Brown v. Chote, 411 U.S. 452, 457, 93 S.Ct. 1732, 1735, 36 L.Ed.2d 420 (1973). To obtain a preliminary injunction, a party must show: “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). With regard to the existence of irreparable harm, in Sampson v. Murray, 415 U.S. 61, 91-92, 94 S.Ct. 937, 953, 39 L.Ed.2d 166 (1974), the Supreme Court articulated a particularly stringent standard for irreparable injury in government personnel cases. Therein, a probationary government employee sought an injunction against her discharge pending administrative review, alleging that the deprivation of income for an indefinite period of time constituted irreparable injury. According to the Sampson Court, except in a “genuinely extraordinary situation,” irreparable harm is not shown in employee discharge cases simply by a showing of financial distress or difficulties" }, { "docid": "16527734", "title": "", "text": "Motion for Preliminary Injunction A preliminary injunction may issue only where the movant has shown “(1) irreparable harm and (2) either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them fair ground for litigation, and a balance of hard ships tipping decidedly toward the party requesting the preliminary relief.” Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir.1994) (quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979)). Ordinarily, violations of First Amendment rights are recognized as constituting an irreparable injury. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976); Paulsen v. County of Nassau, 925 F.2d 65, 68 (2d Cir.1991). Plaintiffs have succinctly set forth sufficient allegations of a violation of their First Amendment rights to the free exercise of their religion to satisfy this first requirement for a preliminary injunction. Moreover, the balance of hardships tilts decidedly in the plaintiffs’ favor. Plaintiffs claim that they have no other way of practicing their religious beliefs other than by the very act which defendants forbid: the wearing of their beads. In contrast, and as is more fully discussed below, defendants have an alternative means to further their goal of institutional security and control, which would not significantly burden plaintiffs’ right to religious expression. They can simply permit plaintiffs to wear their beads under their clothing. The central question remaining, then, is whether plaintiffs have shown a likelihood of success on the merits or a sufficiently serious question going to the merits justifying the issuance of injunctive relief. For the reasons discussed below, I conclude that the plaintiffs have carried their burden on this second requirement for preliminary injunctive relief. III. The Religious Freedom Restoration Act Plaintiffs challenge the DOCS directive under the Religious Freedom Restoration Act of 1993 (“the Act”). The Act is of historical and legal significance because it reinstates the “compelling state interest” standard applicable to free exercise of religion claims previously eviscerated by the Supreme Court’s decision in Employment Division, Dept. of Human Resources" }, { "docid": "3195848", "title": "", "text": "prisons. See Rhodes, 452 U.S. at 357, 101 S.Ct. at 2404 (Brennan, J., concurring) (“The problems of administering prisons within constitutional standards are indeed ‘complex and intractable,’ ... but at their core is a lack of resources allocated to prisons.”); Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). As a result, the state prison system in New York is operating at 109% capacity and is causing a strain on the county jails as the number of inmates that the state can accept into its system has decreased. Therefore, the counties in the state, including Onondaga, are forced to house persons who should be in the state, rather than county, system. As the problem has continued, certain counties are particularly ov ertaxed and have boarded out their own inmates to other counties either because of their recognition that they lacked space to house these inmates or by force of court order directing the counties to reduce their inmate population. See e.g., Badgley v. Varelas, 729 F.2d 894 (2d Cir.1984) (Nassau County); Vazquez, 523 F.Supp. 1359 (Westchester County). III. ' To obtain preliminary injunctive relief, plaintiffs must show: “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). Plaintiffs’ allegations that they have suffered and will continue to suffer constitutional deprivations from the conditions resulting from the overcrowding at the PSB jail satisfy the requirement of irreparable harm; deprivation of constitutional rights constitutes irreparable harm per se. See e.g., Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.1984) (and cases cited therein); Fortune Society v. McGinnis, 319 F.Supp. 901, 903 (S.D.N.Y.1970) (Weinfeld, J.). Plaintiffs have demonstrated a likelihood of success on the merits on their fourteenth amendment claim on behalf of pre-trial detainees that conditions of confinement amount to punishment, thereby making the granting of preliminary" }, { "docid": "19835897", "title": "", "text": "Parade. (emphasis added). From this testimony it appears to the Court that it is the congestion on and around the Avenue itself that drives ILGO to seek a permit to march on that route on that day and to reject the idea of a march on any other route or date. See, e.g., Maguire Aff., ¶ 8 (stating that on St. Patrick’s Day in 1992 when ILGO conducted a protest march from 59th Street to 68th Street at 10:00 a.m., “[t]here was no opportunity for the protest march to be seen by the Parade supporters who gather between 44th Street and 59th Street to observe the parade, nor was there any opportunity to be seen by the Parade participants who line up on the side-streets between 44th Street and 59th Street in advance of the Parade.”) CONCLUSIONS OF LAW I. Preliminary Injunction Standards To obtain a preliminary injunction in this Circuit, the moving party has the burden of showing (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting preliminary relief. See Citibank, N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir.1985) (quoting Bell & Howell: Mamiya Co. v. Mosel Supply Co., Corp., 719 F.2d 42, 45 (2d Cir.1983) (quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979))). II. Irreparable Harm As an initial matter, the Court finds that plaintiff has adequately demonstrated the potential for irreparable harm. “ ‘The loss of-First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ ” Gay Veterans Association, Inc. v. American Legion, 621 F.Supp. 1510, 1515 (S.D.N.Y.1985) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976)). In the absence of an injunction, the plaintiff will not be able to conduct its protest parade on 5th Avenue on St. Patrick’s Day and thus will not be able to declare its message. Such an injury will be" }, { "docid": "3195849", "title": "", "text": "(Nassau County); Vazquez, 523 F.Supp. 1359 (Westchester County). III. ' To obtain preliminary injunctive relief, plaintiffs must show: “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). Plaintiffs’ allegations that they have suffered and will continue to suffer constitutional deprivations from the conditions resulting from the overcrowding at the PSB jail satisfy the requirement of irreparable harm; deprivation of constitutional rights constitutes irreparable harm per se. See e.g., Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.1984) (and cases cited therein); Fortune Society v. McGinnis, 319 F.Supp. 901, 903 (S.D.N.Y.1970) (Weinfeld, J.). Plaintiffs have demonstrated a likelihood of success on the merits on their fourteenth amendment claim on behalf of pre-trial detainees that conditions of confinement amount to punishment, thereby making the granting of preliminary relief appropriate as to the pre-trial detainees. Continuous overcrowding resulting in inmates being housed in the corridors — particularly those not provided cots; inmates not being segregated — particularly persons not mentally unstable housed with the mentally unstable inmates on cell block 2A; and the lack of activities outside of the cell blocks cannot be said to comport with contemporary standards of decency. See Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. Plaintiffs have therefore demonstrated serious questions going to the merits of their eighth amendment claim to make them fair ground for litigation. See Jackson Dairy, 596 F.2d at 72. Relief available to the pre-trial detainees would equally benefit the sentenced inmates. Therefore the balance of hardships on plaintiffs’ claim for relief under the eighth amendment tips decidedly toward the plaintiffs and entitles the sentenced inmates to preliminary in-junctive relief. Because of its invidious effect on numerous aspects of plaintiffs’ living conditions, Lareau, 651 F.2d at 100, the continuous overcrowding at the PSB as in recent months of 40-45 inmates over capacity must" }, { "docid": "4322833", "title": "", "text": "they are, therefore, not before this court. At oral argument, plaintiffs advised this court that they were amending the complaint and perfecting service. Today, they advise that they have not been able to serve these defendants whom, they contend, may be attempting to avoid service. In any event, it is too late to serve them with the order to show cause. Since the other defendants deny having any control over the election procedures, this alone would seem to require that the preliminary injunction be denied. However, we will also consider the merits of the motion. B. The Injunction A preliminary injunction is an extraordinary remedy not to be routinely granted. Patton v. Dole, 806 F.2d 24, 28 (2d Cir.1986). The purpose of a preliminary injunction is to preserve the status quo until a hearing can be had on the merits of the case. The general standard for granting preliminary injunction relief in this circuit is well settled. To justify the issuance of an injunction, the plaintiff must show “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam). However, where the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme, the less rigorous fair-grounds-for-litigation standard does not apply. Union Carbide Agricultural Production Co. v. Costle, 632 F.2d 1014, 1018 (2d Cir.1980), cert. denied, 450 U.S. 996, 101 S.Ct. 1698, 68 L.Ed.2d 196 (1981). The election has been scheduled as required by state law and any election is, without question, in the public interest. Therefore, in order to prevail on this motion, plaintiffs must show both that they will suffer irreparable harm if the election of village officials is not enjoined and that they are likely to prevail on the merits of the claims asserted. A showing of irreparable harm" }, { "docid": "1791309", "title": "", "text": "voted on September 10, 1996 in specified election districts. This appeal followed and was considered on an expedited basis. Plaintiffs appeal from the district court’s denial of the broader in-junctive relief they desired; that is, a declaration that the original primary election was void and an order that an entirely new primary election be held. Several of the defendants who won the primary and are candidates for the general election cross-appeal. The defendants John Sampson, Ad'ele Cohen and Martin Bromberger appeal, contending that the plaintiffs lack standing to bring the present claims, and that the district court improperly exercised jurisdiction over this cáse. Sampson further contends that the plaintiffs failed to meet their burden of showing irreparable harm and a likelihood of success on the merits, among other things. Like. the plaintiffs,, the defendant Kenneth Evans contends on appeal that an entire new primary election in all election districts be held. The defendant Michael Feinberg responds to the plaintiffs’ appeal by contending that the district court’s injunction was appropriate and should be affirmed, but cross-appeals and argues that the district court erred in retaining jurisdiction over the matter. Although plaintiffs’ complaint also alleges claims under' the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973-1978ff-6, the First and Fourteenth Amendments to the United States Constitution, Article II, Section 1 of the New York State Constitution, and the New York State Election Law, the district court’s injunction was entered on the basis of § 1983, and we limit our review here to that claim. Discussion The general standard for issuing a preliminary injunction requires that the mov-ant show “ ‘(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.’ ” International Dairy Foods Ass’n v. Amestoy, 92 F.3d 67, 70 (2d Cir.1996) (quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam)). We review the grant of" }, { "docid": "910150", "title": "", "text": "to salvage the situation, there is no assurance that it will be successful, in which case it could wind up in bankruptcy. (Id. at F-30) Discussion In order to obtain a preliminary injunction, the movant must show “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). Moreover, a clear showing of a threat of irreparable harm is essential. E.g., Triebwasser v. American Tel. & Tel. Co., 535 F.2d 1356, 1359 (2d Cir.1976). Absent such a threat, there is no occasion to consider either the merits or the balance of hardships. Threat of Irreparable Injury Holford here complains of alleged past and prospective breaches of contract and, perhaps, torts by Cherokee—breach of the right of first refusal and interference with Holford’s ability to sell Cherokee brand Jeans that Cherokee has failed to accept. It thus already has damage claims against Cherokee, and it may have additional claims based on future events. In ordinary circumstances, Holford would have a full, complete and adequate remedy at law. Holford, however, maintains that Cherokee’s insolvency means that its damage remedy is illusory, at least in significant measure, and that it therefore is threatened with irreparable injury. The fundamental commercial and legal reality is that one pursuing a damage claim against an insolvent defendant is unlikely to recover the full amount of its alleged loss even if it prevails and becomes a judgment creditor. While there may be exceptions, unsecured creditors, particularly unsecured creditors whose claims are unliquidated and contingent, rarely recover one hundred cents on the dollar, whether the affairs of an insolvent are resolved through a consensual workout, a Chapter 11 reorganization or liquidation. Hence, anyone with a claim against an insolvent defendant is threatened with a loss that might be termed “irreparable.” The question is whether there are circumstances in which such a" }, { "docid": "6012375", "title": "", "text": "452, 457, 93 S.Ct. 1732, 1735, 36 L.Ed.2d 420 (1973). To obtain a preliminary injunction, a party must show: “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). With regard to the existence of irreparable harm, in Sampson v. Murray, 415 U.S. 61, 91-92, 94 S.Ct. 937, 953, 39 L.Ed.2d 166 (1974), the Supreme Court articulated a particularly stringent standard for irreparable injury in government personnel cases. Therein, a probationary government employee sought an injunction against her discharge pending administrative review, alleging that the deprivation of income for an indefinite period of time constituted irreparable injury. According to the Sampson Court, except in a “genuinely extraordinary situation,” irreparable harm is not shown in employee discharge cases simply by a showing of financial distress or difficulties in obtaining other employment. Id. at 92 n. 68, 94 S.Ct. at 953 n. 68. We therefore agree with the district court that Danko’s financial difficulties resulting from his discharge are not sufficient to establish irreparable injury. Appellees contend and the district court found, however, that Danko’s discharge pending arbitration would have a chilling effect on the exercise of their first amendment rights and that such a chilling effect constitutes irreparable injury. Appellant admits that the chilling of first amendment rights would constitute irreparable injury. Katz v. McAulay, 438 F.2d 1058, 1060, n. 3 (2d Cir.1971), cert. denied, 405 U.S. 933, 92 S.Ct. 930, 30 L.Ed.2d 809 (1972). Appellant argues, however, that appellees have failed to demonstrate that Danko’s discharge, pending arbitration, would in fact have a chilling effect on appellees’ first amendment rights. We conceive the question facing us concerning the existence of irreparable harm in the instant case as being twofold: whether appellees’ first amendment rights are implicated by Danko’s letter to Mystic; and, if so, whether Danko’s discharge pending arbitration sufficiently chills" }, { "docid": "22289044", "title": "", "text": "indication in the case before us that the district court made such a determination. Since the district court’s decision was made on the basis of a paper record, without an evidentiary hearing, we are in as good a position as the district judge to determine the propriety of granting a preliminary injunction. See Jack Kahn Music Company v. Baldwin Piano & Organ Company, 604 F.2d 755 (2d Cir.1979). In our circuit a preliminary injunction will be issued when there is a showing of “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir.1979). In the present case this test has been met. The loss of Roso-Lino’s distributorship, an ongoing business representing many years of effort and the livelihood of its husband and wife owners, constitutes irreparable harm. What plaintiff stands to lose cannot be fully compensated by subsequent monetary damages. See Semmes Motors, Inc. v. Ford Motor Company, 429 F.2d 1197, 1205 (2d Cir.1970) (right to continue twenty-year old dealership “is not measurable entirely in monetary terms”); Janmort Leasing, Inc. v. Econo-Car International, Inc., 475 F.Supp. 1282, 1294 (E.D.N.Y.1979) (loss of business not compensable in monetary terms and not reducible to monetary value). It is equally clear that the equities tip decidedly in favor of Roso-Lino. It is unlikely that Coca-Cola will suffer greatly if the eleven-year relationship is continued for a short while. The two owners of Roso-Lino, on the other hand, stand to lose their business forever. Because the equities tip (rather heavily) in favor of granting a preliminary injunction, Roso-Lino need demonstrate only “serious questions going to the merits”, rather than “likelihood of success on the merits”. Jackson Dairy, Inc. v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir.1979). That there are serious questions is clear from the parties’ conflicting stories of the reasons Coca-Cola had for" } ]

[ { "docid": "22198617", "title": "", "text": "considering evidence that was not part of Equitable’s administrative record. Because Equitable did not abuse its discretion in terminating Taft’s disability benefits based solely upon that record, we reverse. REVERSED. . Equicor, a subdivision of Equitable, actually administered the plan for Equitable. . In several cases after the Supreme Court’s Firestone decision, we used the term “arbitrary and capricious\" to describe this deferential standard of review. See Dytrt v. Mountain State Tel. & Tel. Co., 921 F.2d 889, 894 (9th Cir.1990); Madden v. ITT Long Term Disability Plan, 914 F.2d 1279, 1284 (9th Cir.1990), cert. denied, 498 U.S. 1087, 111 S.Ct. 964, 112 L.Ed.2d 1051 (1991). Because we employed review in those cases consistent with the strictures of the abuse of discretion standard, however, our use of a different term was \"a distinction without a difference.” Cox v. Mid-America Dairymen, Inc., 965 F.2d 569, 572 n. 3 (8th Cir.1992). See Block v. Pitney Bowes Inc., 952 F.2d 1450, 1454 (D.C.Cir.1992) (“The distinction, if any, between 'arbitrary and capricious review' and review for ‘abuse of discretion’ is subtle.\"). . We express no opinion on the proper scope of a district court’s de novo review of an administrator’s decision. Compare Luby, 944 F.2d at 1184 (district court may examine all evidence when engaging in de novo review) with Perry, 900 F.2d at 966 (district courts limited to the administrative record even with de novo review). . Taft suggests that Dr. Ashby’s report is not part of the record because Equitable made its initial determination to terminate Taft’s benefits before it received the report. This contention is incorrect because Equitable did rely on Dr. Ashby’s report to reject Taft’s appeal of the initial determination. . Taft contends that Audell's report was clearly erroneous because the doctor thought he was examining Taft in connection with a workers' compensation proceeding. We disagree. Equitable's plan defined \"total disability” as an inability \"to engage in any gainful occupation for which [Taft] is or may reasonably become qualified by education, training, or experience.\" Disability determinations under California workers’ compensation law include consideration of \"the occupation of the injured" } ]

[ { "docid": "5797673", "title": "", "text": "decision for an abuse of discretion. Under that standard, the district court correctly determined that additional evidence could not be considered. In Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469 (9th Cir.1994), this court explained that “[p]ermitting a district court to examine evidence outside the administrative record would open the door to the anomalous conclusion that a plan administrator abused its discretion by failing to consider evidence not before it.” Id. at 1472. Upon remand, however, the same bar against the introduction of additional evidence will not apply. As we explained in Kearney, when reviewing a genuine issue of fact de novo, the district court has discretion, subject to the guidelines set forth in Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938 (9th Cir.1995), to consider additional evidence. See Kearney, 175 F.3d at 1094-95. Under Mongeluzo, such evidence should be considered “only when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision.” Mongeluzo, 46 F.3d at 944 (quoting Quesinberry v. Life Ins. Co. of North America, 987 F.2d 1017, 1025 (4th Cir.1993) (en banc)) (internal quotation marks omitted). The district court might find this case to be one in which additional evidence would be helpful, particularly given that the credibility of Thomas’ physicians is at issue. See Quesinberry, 987 F.2d at 1027 (“Exceptional circumstances that may warrant an exercise of the court’s discretion to allow additional evidence include ... issues regarding the credibility of medical experts.... ”). We leave this determination to the district court. IV. Additional Issues Presented on Appeal Based on our conclusion that Thomas’ claim must be reviewed de novo, we find it unnecessary to consider several other issues raised on appeal. First, we do not consider whether the district court erred in concluding that Reliance did not abuse its discretion in denying her claim. Regardless, the claim is entitled to de novo review by the district court. Nor do we explore Thomas’ contention that we should apply a less deferential standard in a case such as this, where claim decisions are" }, { "docid": "715264", "title": "", "text": "standard of review. See Abatie, 458 F.3d at 964. IV. While de novo is the correct standard of review in this case, the district court abused its discretion by failing to conduct the proper analysis before admitting extrinsic evidence. If de novo review applies, “[t]he court simply proceeds to evaluate whether the plan administrator correctly or incorrectly denied benefits.” Abatie, 458 F.3d at 963. Under de novo review, the district court should have determined whether Opeta was entitled to benefits based on the evidence in the administrative record and “other evidence as might be admissible under the restrictive rule of Mongeluzo.” Kearney, 175 F.3d at 1094. In Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, we resolved the question of the scope of review that a district court may employ upon de novo review of a plan administrator’s decision. 46 F.3d 938, 943-44 (9th Cir.1995). Agreeing with the Third, Fourth, Seventh, Eighth, and Eleventh Circuits, we held that extrinsic evidence could be considered only under certain limited circumstances. Id. We cited with approval the rule of the Fourth Circuit that the district court should exercise its discretion to consider evidence outside of the administrative record “ ‘only when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision.’ ” Id. at 944 (quoting Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1025 (4th Cir.1993) (en banc)) (emphasis added). We emphasized that “a district court should not take additional evidence merely because someone at a later time comes up with new evidence” and that “[i]n most cases” only the evidence that was before the plan administrator at the time of determination should be considered. Id. In Quesinberry, the Fourth Circuit provided a non-exhaustive list of exceptional circumstances where introduction of evidence beyond the administrative record could be considered necessary: claims that require consideration of complex medical questions or issues regarding the credibility of medical experts; the availability of very limited administrative review procedures with little or no evidentiary record; the necessity of evidence regarding interpretation of the terms" }, { "docid": "13667962", "title": "", "text": "U.S. —, 131 S.Ct. 1866, 179 L.Ed.2d 843 (2011). Accordingly, in this case, the Ninth Circuit reversed on appeal, holding that MetLife’s decision is subject to de novo review, not an abuse of discretion standard. Based on subsequent oral argument, the parties’ written submissions, the administrative record, and some additional extrinsic evidence, the court finds that MetLife erred in denying Oldoerp’s claim. This order comprises the findings of fact and conclusions of law required by Federal Rule of Civil Procedure 52(a). II. EVIDENTIARY RULINGS Ordinarily, cases arising under the Employee Retirement Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., are decided solely on the basis of the administrative record that was before the plan administrator at the time its decision was made. See Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir.1999) (en banc) (“If a court reviews the administrator’s decision, whether de novo ... or for abuse of discretion, the record that was before the administrator furnishes the primary basis for review.”). In some cases, however, additional evidence may be admitted “to enable the full exercise of informed and independent judgment.” Mongeluzo v. Baxter Travenol Long Term Disability Ben. Plan, 46 F.3d 938, 943 (9th Cir.1995). At trial, both Oldoerp and MetLife moved to admit extrinsic documents. Oldoerp proffered her Social Security Administration (SSA) file, which contains additional medical records not included in the administrative record. The file was admitted, as it is “necessary ... for an adequate de novo review.” (ECF No. 72, Nov. 25, 2013) (quoting Mongeluzo, 46 F.3d at 943). MetLife submitted extrinsic documents allegedly showing that, during the pendency of Oldoerp’s disability claim, she opened a dance studio with her husband. This evidence was excluded, as MetLife failed to explain why it was admissible under Mongeluzo. See 46 F.3d at 943. In light of the admission of Ol-doerp’s SSA file, the parties were instructed to submit supplemental briefing addressing the significance of the newly-admitted evidence. Id. MetLife’s supplemental briefs rely in significant part on two additional pieces of extrinsic evidence: a vocational report by Susan Simoni and an Independent Physician Consultant" }, { "docid": "23032347", "title": "", "text": "dependent on her sales record. Furthermore, the Bell Plan does not indicate that a “General Sales Manager” cannot also be a “salesperson” for the purposes of receiving benefits. We conclude that there is a genuine issue of material fact as to whether Tremain was a “salesman.” Because there are genuine issues of material fact in dispute as to whether Tremain was disabled and as to whether she was a “salesman,” her entitlement to benefits and the amount of those benefits may not be decided by summary judgment. A trial is necessary. See Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (1999) (en banc), cert. denied, — U.S. -, 120 S.Ct. 398, — L.Ed.2d - (1999). In that trial, as the district court reviews de novo MetLife’s benefits decision, it will have to consider whether to admit evidence outside of the administrative record. In making that decision, the court is to be guided by its sound discretion and our decision in Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938 (9th Cir.1995). There, we held that a district court should admit evidence outside the administrative record when that evidence “is necessary to conduct an adequate de novo review of the benefit decision.” Id. at 944 (quoting Quesinberry v. Life Ins. Co. of North America, 987 F.2d 1017, 1025 (4th Cir.1993)). Evidence that meets this standard need not satisfy the strict rules for the admissibility of evidence in a civil trial, and may be considered so long as it is relevant, probative, and bears a satisfactory indicia of reliability. See Mongeluzo, 46 F.3d at 941, 943 n. 2 (doctor’s report and two affidavits admissible). CONCLUSION In determining whether a plan administrator’s conflict of interest affected its decision to deny benefits, evidence outside the administrative record may be considered. The evidence in this case created a rebuttable presumption that MetLife’s conflict of interest affected its decision to deny Tremain benefits. MetLife failed to rebut that presumption. Accordingly, the administrator’s decision to deny benefits is subject to de novo review by the district court. Because there are genuine issues of" }, { "docid": "5743091", "title": "", "text": "at 949 n. 1. . By this, of course, we mean review on the record that was before the administrator unless \"circumstances clearly establish that additional evidence is necessary.” Kearney, 175 F.3d at 1090 (quoting Mongeluzo v. Baxter Travenol Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir.1995)) (internal quotations omitted). . The First Circuit has applied arbitrary and capricious review to a trust document that gave trustees \"without limitation . .. the power ... to ... promulgate and establish rules ... and formulate and establish conditions of eligibility” and to do all acts they deem necessary, having construed the power to create \"rules” governing \"conditions of eligibility” \"as carrying with it a similarly broad implied power to interpret those rules.” Diaz v. Seafarers Int'l Union, 13 F.3d 454, 457 (1st Cir.1994). The Second Circuit has indicated that \"magic words” such as \"discretion” and \"deference” are not \"absolutely necessary” for abuse of discretion review, but are certainly helpful. Compare Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 251-52 (2d Cir.1999) (holding that the phrase \"submit [ ] satisfactory proof of Total Disability to us” contained \"needless ambiguity”) with Ganton Technologies, Inc. v. National Industrial Group Pension Plan, 76 F.3d 462, 466 (2d Cir.1996) (Plan providing that trustees had authority to \"resolve all disputes and ambiguities relating to the interpretation of the Plan” sufficed to invoke review for abuse of discretion) and Jordan v. Retirement Committee of Rensselaer Polytechnic Institute, 46 F.3d 1264, 1269-71 (2d Cir.1995) (provision that Committee \"shall pass upon all questions concerning the application or interpretation of the provisions of the Plan” suffices to overcome the Firestone presumption). The Third Circuit (like the Ninth) follows the rule of \"contra preferentem” and has indicated that the grant of discretion should be \"clear and unequivocal.” Compare Heasley v. Belden & Blake Corp., 2 F.3d 1249, 1254-58 (3d Cir.1993) (applying de novo review to language that \"[w]e will evaluate the proposed admission for certification of medical necessity and appropriateness under the terms of the Master Group Policy and send a letter documenting the recommendation to you”), with Mitchell" }, { "docid": "1551522", "title": "", "text": "must conduct, pursuant to Rule 52, Federal Rules of Civil Procedure, a bench trial based on the administrative record and such other evidence as the Court admits. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir.) (en banc) cert. den. 528 U.S. 964, 120 S.Ct. 398, 145 L.Ed.2d 310 (1999). II. Parties’ Motions A. ERISA Standard of Review ERISA provides Plaintiff with a federal cause of action to recover the benefits she claims are due under the Plan. 29 U.S.C. § 1132(a)(1)(B). The standard of review of a plan administrator’s denial of ERISA benefits depends upon the terms of the benefit plan. Absent contrary language in the plan, the denial is reviewed under a de novo standard. See Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). However, if “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan,” an abuse of discretion standard is applied. Id.; Taft v. Equitable Life Assurance Society, 9 F.3d 1469, 1471 (9th Cir.1993). Where discretionary authority has been granted to the plan administrator, the Ninth Circuit has applied an “arbitrary and capricious” standard in determining whether the plan administrator abused its discretion. McKenzie v. General Telephone Co. of California, 41 F.3d 1310, 1314 (9th Cir.1994); Taft, 9 F.3d at 1471, n. 2 (use of the term “arbitrary and capricious” versus “abuse of discretion” is a “distinction without a difference”). Here, the plan grants Liberty discretion to interpret the policy, as well as the power to decide eligibility for benefits. Because the plan grants Liberty this discretionary authority, an arbitrary and capricious or abuse of discretion standard should be applied, unless a conflict of interest triggers the less deferential standard. See, e.g., Taft, 9 F.3d at 1471. If “a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a factor in determining whether there is an abuse of discretion.” Firestone, 489 U.S. at 115, 109 S.Ct. 948." }, { "docid": "5743090", "title": "", "text": "plan shall- (1) provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant, and (2) afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim. 29 U.S.C. §1133. . We noted that \"[t]he Plan instructs an employee to file a claim with the plan administrator, who will issue a '[wjritten decision! 1 of approval or denial,’ including, in the event of a denial, a 'clear reference to the Plan provisions upon which the denial is based.’ The claimant may then request a review of the denial by the insurance company, which, after a 'full and fair evaluation,’ will also issue a written decision that includes 'specific reasons for the decision, with reference to Plan provisions on which the decision is based.' ” Patterson, 11 F.3d at 949 n. 1. . By this, of course, we mean review on the record that was before the administrator unless \"circumstances clearly establish that additional evidence is necessary.” Kearney, 175 F.3d at 1090 (quoting Mongeluzo v. Baxter Travenol Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir.1995)) (internal quotations omitted). . The First Circuit has applied arbitrary and capricious review to a trust document that gave trustees \"without limitation . .. the power ... to ... promulgate and establish rules ... and formulate and establish conditions of eligibility” and to do all acts they deem necessary, having construed the power to create \"rules” governing \"conditions of eligibility” \"as carrying with it a similarly broad implied power to interpret those rules.” Diaz v. Seafarers Int'l Union, 13 F.3d 454, 457 (1st Cir.1994). The Second Circuit has indicated that \"magic words” such as \"discretion” and \"deference” are not \"absolutely necessary” for abuse of discretion review, but are certainly helpful. Compare Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 251-52 (2d Cir.1999) (holding that" }, { "docid": "16540130", "title": "", "text": "of CNA’s complete file relating to plaintiffs claim. (Id.). CNA responded in writing to the California DOI on July 19, 2002, stating that it would refer plaintiffs file to a medical consultant for review. (Id. at 44). CNA also indicated that it would reevaluate plaintiffs claim and that a decision would be made “within the time frame allotted of 21 days.” (Id.). In reevaluating plaintiffs claim, CNA had Dr. Eugene Truchelut, an internist, review plaintiffs file. (AR at 42). This was the first time in its handling of plaintiffs claim that CNA sought to have plaintiffs records reviewed by a doctor. Prior to this time, defendant CNA only sought medical review from its own in-house nurses. (See, e.g., id. at 25, 56-60, 67-68 & 73-75). CNA provided a summary of plaintiffs file to Dr. Truchelut on its Physician Re view Form, stating only that plaintiffs “test results do not appear to be abnormal and [her] occupation includes data entry and review of medical records.” (AR at 40). CNA asked Dr. Truchelet to state his opinion as to whether the findings of plaintiffs physician, including restrictions of no work due to stress, would prevent plaintiff from performing the duties of her occupation. (Id.). On August 5, 2002, after reviewing plaintiffs claim, Dr. Truchelut submitted his report. (AR at 31-33). Notably, he indicated that no information was given regarding the physical demands of plaintiffs job and that the only description of plaintiffs job duties was “data entry and review of medical records,” (Id. at 31). Dr. Truchelut summarized plaintiffs medical history and concluded that “the recent medical records provided [ ] do not support an inability by [plaintiff] to perform the types of work activities which you refer to, at least from the physical standpoint.” (Id. at 32). Although he stated that plaintiffs “most recent Hotter monitor did not show evidence of significant arrhythmias, and her pacemaker was functioning normally,” he noted that “[t]he issue of psychological stress impacting on her occupational abilities is idiosyncratic, and not able to be quantified by these types of tests.” (Id. at 33). Based on the" }, { "docid": "15637135", "title": "", "text": "a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a). In reviewing the actions of a plan fiduciary under the arbitrary and capricious standard, “the Court must decide whether the plan administrator’s decision was rational in light of the plan’s provisions.” Williams v. International Paper Co., 227 F.3d 706, 712 (6th Cir.2000) (citation and internal quotation omitted). “Stated differently, when it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary and capricious.” Id. (citation and internal quotation omitted). “The arbitrary [and] capricious standard is the least demanding form of judicial review of administrative action.” Davis v. Kentucky Fin. Cos. Ret. Plan, 887 F.2d 689, 693 (6th Cir.1989) (citation omitted). The gravamen of Willis’ argument is that CNA determined that she was not totally disabled, for the purpose of receiving permanent LTD benefits, on the basis of reports rendered by non-examining physicians and a Vocational Rehabilitation Specialist of unverified credentials (Ms. Glass), and, in doing so, arbitrarily and capriciously discounted both the respective reports of her treating physician, Dr. Johnson, and a qualified Vocational Rehabilitation Specialist (Mr. Cody), which indicated clearly that she was totally disabled for such purpose, and the finding by the SSA that she was permanently and totally disabled. Furthermore, she takes issue with the fact that CNA made its determination in March of 1999, some 18 months before her initial 24-month LTD benefits period was to expire and before she was diagnosed with carpal tunnel, and that CNA did not reconsider its decision once the evidence of her carpal tunnel and updated medical reports were submitted as part of her appeal. (Doc. # 12 at 12-16.) For their part, the Defendants contend that the medical evidence indicates that Willis was mostly healthy, and at most restricted to a sedentary occupation, and that the independent reviews of her medical record conducted by Drs. Truchelut and Ryan support this conclusion, such that CNA had a “reasoned explanation” for concluding as" }, { "docid": "20633566", "title": "", "text": "an ERISA benefits denial may consider evidence outside the administrative record as necessary to conduct an adequate de novo review of the benefit decision. Friedrich v. Intel Corp., 181 F.3d 1105, 1111 (9th Cir.1999)(quoting Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir.1995)). Federal courts apply federal common law when faced with questions of policy interpretation under ERISA. Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1125 (9th Cir.2002). Under this federal common law, the terms of a plan are given their ordinary and popular meaning as would a person of average intelligence and experience. Id. A de novo review “ ‘gives no deference at all’ to the decisions of insurers to deny benefits.” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 n. 2 (9th Cir.1999). Plaintiff has the burden of proof to show that he was eligible for continued long term disability benefits based on the terms and conditions of the ERISA plan. See Sabatino v. Liberty Life Assurance Co., 286 F.Supp.2d 1222, 1232 (N.D.Cal. 2003). In a trial on the administrative record, the Court “can evaluate the per suasiveness of conflicting testimony and decide which is more likely true.” Kearney, 175 F.3d at 1095. In order to receive LTD benefits under the Plan, a claimant must be “unable to perform any and every duty of [the claimant’s] own occupation due to a medically determined physical or mental impairment caused by sickness, disease, [or] injury ...” The claimant also must be under the regular care and attendance of a doctor. The Plan further provides that if a claimant is disabled due to “mental illness,” benefits are limited to 24 months if treatment is rendered on an outpatient basis. The term “mental illness” is defined as “a mental, emotional or nervous condition of any kind.” Evidence in the administrative record shows that Plaintiff is under the regular care and attendance of his physicians following his coronary artery bypass surgery in January 1999. The parties do not dispute a finding on this issue in their briefing. Defendants’ argument that the medical evidence of" }, { "docid": "16540139", "title": "", "text": "notices and opinion letters issued by the California DOI. Wible v. Aetna Life Ins. Co., 375 F.Supp.2d 956, 965 (C.D.Cal.2005) (internal quotation marks omitted) (taking judicial notice of the February 26, 2004, opinion letter issued by the California DOI); see also Toth v. Automobile Club of California Long Term Disability Plan, 2005 WL 1877150 at *23 n. 237 (C.D.Cal. 2005) (taking judicial notice of the February 27, 2004, Notice issued by the California DOI). Furthermore, a court may take judicial notice of the final decisions of other district courts, including decisions regarding the applicable standard of review in ERISA disability cases. See Wible, 375 F.Supp.2d at 965 (a court may take judicial notice of “documents that are public records and capable of accurate and ready confirmation by sources that cannot reasonably be questioned”); Toth, 2005 WL 1877150 at *23 n. 237 (taking judicial notice of “the final decisions of other district courts regarding the effect of the February 27, 2004 Notice [by the California DOI] on the standard of review in ERISA disability cases,” including the final decisions in Fenberg, Firestone, Hansen, and the transcript of oral argument and tentative ruling in Rosten). Finally, the court notes that in the context of ERISA eases, a court is permitted to review evidence outside of the administrative record in order to determine the standard of review. Wible, 375 F.Supp.2d at 966. Based on the foregoing, the court grants each of the parties’ requests for judicial notice and takes judicial notice of the documents set forth above. II. STANDARD OF REVIEW. The parties disagree as to whether the court should review CNA’s termination of plaintiffs benefits under a de novo or abuse of discretion standard of review. “Although ERISA establishes a right to judicial review of benefits decisions, the statute does not set forth the appropriate standard of review for such determinations.” Hensley v. Northwest Permanente P.C. Retirement Plan & Trust, 258 F.3d 986, 994 (9th Cir.2001), cert. denied, 534 U.S. 1082, 122 S.Ct. 815, 151 L.Ed.2d 699 (2002); see also Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 108-09, 109" }, { "docid": "22692160", "title": "", "text": "review.” (citation omitted)); Kearney, 175 F.3d at 1090-91 (holding that the standard of review informs the amount of evidence that a district court may consider); Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir.1995) (holding that the district court has discretion to allow evidence that was not before the plan administrator “only when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review” (internal quotation marks omitted)). A subtler question arises when a court must decide how much weight to give a conflict of interest under the abuse of discretion standard. In making that determination, the court may consider evidence outside the record. We have held that the court may consider evidence beyond that contained in the administrative record that was before the plan administrator, to determine whether a conflict of interest exists that would affect the appropriate level of judicial scrutiny. See Tremain, 196 F.3d at 976-77 (holding that a court may consider extra-record evidence to determine whether the administrator was plagued by a conflict of interest); see also Kosiba v. Merck & Co., 384 F.3d 58, 67 n. 5 (3d Cir.2004) (holding that a district court may supplement the record in order to decide whether a conflict of interest exists), cert. denied, 544 U.S. 1044, 125 S.Ct. 2252, 161 L.Ed.2d 1079 (2005). [9] Today, we continue to recognize that, in general, a district court may review only the administrative record when considering whether the plan administrator abused its discretion, but may admit additional evidence on de novo review. That principle is consistent with Tremain, 196 F.3d at 976-79, which permits extrinsic evidence on the question of a conflict of interest. The district court may, in its discretion, consider evidence outside the administrative record to decide the nature, extent, and effect on the decision-making process of any conflict of interest; the decision on the merits, though, must rest on the administrative record once the conflict (if any) has been established, by extrinsic evidence or otherwise. See Doe v. Travelers Ins. Co., 167 F.3d 53, 57 (1st Cir.1999) (holding" }, { "docid": "16540172", "title": "", "text": ". The Ninth Circuit has used interchangeably the phrases “arbitrary and capricious” and \"abuse of discretion;” however, \"[a]ny difference between the two standards ... is in name only.” Hensley, 258 F.3d at 994 n. 4; see also Taft v. Equitable Life Assurance Society, 9 F.3d 1469, 1471 n. 2 (9th Cir.1993) (the terms \"arbitrary and capricious” and “abuse of discretion” used to describe the deferential standard of review in ERISA cases is \"a distinction without a difference”) (internal quotation marks omitted)). . In most cases when the de novo standard of review is applied, however, the court \"should only look at the evidence that was before the plan administrator ... at the time of the determination.” Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir.1995) (internal quotation marks omitted); see also Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090-91 (9th Cir.), cert. denied, 528 U.S. 964, 120 S.Ct. 398, 145 L.Ed.2d 310 (1999) (same). . Under both Plans, \"We” refers to defendant CNA, and \"Your” refers to \"the employee to whom this certificate is issued and whose insurance is in force under the terms of the policy.” (AR at 157 & 192). . \"While [t]he Ninth Circuit has never explicitly defined the parameters or contours of what might suffice to constitute a breach of fiduciary duty in this context, it has without declaring an exhaustive list, stated that material, probative evidence may consist of inconsistencies in the plan administrator's reasons, insufficiency of those reasons, or procedural irregularities in the processing of the beneficiaries claims.\" Wible, 375 F.Supp.2d at 968 (internal quotation marks omitted) (plan administrator breached fiduciary duty by ignoring medical opinions, failing to obtain its own competent medical opinions, deliberately considering only evidence pointing to denial, and failing to conduct an adequate investigation prior to denying plaintiff's claim); see also Friedrich v. Intel Corp., 181 F.3d 1105, 1110 (9th Cir.1999) (plan administrator's failure to follow its own policy and ERISA's mandatory procedures is sufficient to establish breach of fiduciary duty); Lang, 125 F.3d at 798-99 (inconsistencies in administrator’s denial of claim are" }, { "docid": "20633565", "title": "", "text": "suffers from coronary artery disease and that he is disabled as a result of a rapidly deteriorating heart condition in conjunction with his physiologic reaction to job stress. Defendants contend that based on the undisputed evidence provided by Plaintiffs treating physicians, but for Plaintiffs psychological conditions, i.e., bypass anxiety disorder, Plaintiff would not have any disabling symptoms. Defendants further contend that the evidence supported by the administrative record shows that Plaintiff has fully recovered from his heart surgery, he suffers from a psychological condition, and therefore MetLife’s termination of benefits based on the mental/nervous limitation was proper. III. Conclusions of Law. This Court has jurisdiction over this action pursuant to the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. This Court’s review of Defendants’ decision to terminate benefits is de novo. The district court, in applying the de novo standard of review, must review de novo the plan administrator’s decision to deny benefits. Tremain v. Bell Industries, Inc., 196 F.3d 970, 978 (9th Cir.1999). A district court performing de novo review of an ERISA benefits denial may consider evidence outside the administrative record as necessary to conduct an adequate de novo review of the benefit decision. Friedrich v. Intel Corp., 181 F.3d 1105, 1111 (9th Cir.1999)(quoting Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir.1995)). Federal courts apply federal common law when faced with questions of policy interpretation under ERISA. Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1125 (9th Cir.2002). Under this federal common law, the terms of a plan are given their ordinary and popular meaning as would a person of average intelligence and experience. Id. A de novo review “ ‘gives no deference at all’ to the decisions of insurers to deny benefits.” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 n. 2 (9th Cir.1999). Plaintiff has the burden of proof to show that he was eligible for continued long term disability benefits based on the terms and conditions of the ERISA plan. See Sabatino v. Liberty Life Assurance Co., 286 F.Supp.2d 1222, 1232 (N.D.Cal. 2003)." }, { "docid": "16540171", "title": "", "text": "Stedman’s Medical Dictionary at 1741. . The seven-day elimination period lasted from July 15, 2001, to July 21, 2001. (AR at 1, 4, 11 & 13). . The seven-day elimination period lasted from December 8, 2001, to December 14, 2001. (AR at 27, 52 & 125). . A \"Holter monitor” is \"a technique for long-term, continuous recording of electrocardiographic signals on magnetic tape for scanning and selection of significant but fleeting changes that might otherwise escape notice.” Stedman’s Medical Dictionary at 1125. . Subsequently, 21 days passed, and the California DOI wrote to defendant CNA on August 9, 2002, stating that it had not yet received the “anticipated follow up” to CNA's July 19, 2002 letter. (AR at 38). At that time, the California DOI again requested a copy of CNA’s complete claim file. (Id.). . Defendants do not rebut plaintiff's argument that CNA did not provide these letters to Dr. Truchelut for his review, and the court cannot find any indication in the record indicating that Dr. Truchelut did, in fact, review the letters. . The Ninth Circuit has used interchangeably the phrases “arbitrary and capricious” and \"abuse of discretion;” however, \"[a]ny difference between the two standards ... is in name only.” Hensley, 258 F.3d at 994 n. 4; see also Taft v. Equitable Life Assurance Society, 9 F.3d 1469, 1471 n. 2 (9th Cir.1993) (the terms \"arbitrary and capricious” and “abuse of discretion” used to describe the deferential standard of review in ERISA cases is \"a distinction without a difference”) (internal quotation marks omitted)). . In most cases when the de novo standard of review is applied, however, the court \"should only look at the evidence that was before the plan administrator ... at the time of the determination.” Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir.1995) (internal quotation marks omitted); see also Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090-91 (9th Cir.), cert. denied, 528 U.S. 964, 120 S.Ct. 398, 145 L.Ed.2d 310 (1999) (same). . Under both Plans, \"We” refers to defendant CNA, and \"Your” refers to \"the" }, { "docid": "22692159", "title": "", "text": "v. Verizon N.Y., Inc., 252 F.3d 163, 173 (2d Cir.2001) (noting that when review is for abuse of discretion, the record consists of the administrative record); Elliott v. Sara Lee Corp., 190 F.3d 601, 608 & n. 6 (4th Cir.1999) (noting that on de novo review, a court may consider extra-judicial evidence, but stating that abuse of discretion review must be based on the evidence before the administrator); Vega, 188 F.3d at 300 (restricting review to the administrative record when the court is considering the administrator’s factual determinations for abuse of discretion); Buckley v. Metro. Life, 115 F.3d 936, 941 & n. 2 (11th Cir.1997) (per curiam) (holding that extra-record evidence, presented to the district court on review for abuse of discretion, was irrelevant). Indeed, we have adhered to a similar rule. See Jebian v. Hewlett-Packard Co. Employee Benefits Org. Income Prot. Plan, 349 F.3d 1098, 1110 (9th Cir.2003) (“While under an abuse of discretion standard our review is limited to the record before the plan administrator, this limitation does not apply to de novo review.” (citation omitted)); Kearney, 175 F.3d at 1090-91 (holding that the standard of review informs the amount of evidence that a district court may consider); Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir.1995) (holding that the district court has discretion to allow evidence that was not before the plan administrator “only when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review” (internal quotation marks omitted)). A subtler question arises when a court must decide how much weight to give a conflict of interest under the abuse of discretion standard. In making that determination, the court may consider evidence outside the record. We have held that the court may consider evidence beyond that contained in the administrative record that was before the plan administrator, to determine whether a conflict of interest exists that would affect the appropriate level of judicial scrutiny. See Tremain, 196 F.3d at 976-77 (holding that a court may consider extra-record evidence to determine whether the administrator was plagued by" }, { "docid": "715263", "title": "", "text": "the plan and to determine eligibility of benefits”); Bergt v. Ret. Plan for Pilots Employed by MarkAir, Inc., 293 F.3d 1139, 1142 (9th Cir.2002) (concluding that a plan conferred discretion because its terms granted the administrator the “power” and “duty” to “interpret the plan” and to “decide on questions concerning the plan and the eligibility of any Employee” (internal quotation marks and citations omitted)); McDaniel v. Chevron Corp., 203 F.3d 1099, 1107 (9th Cir.2000) (holding that a plan conferred sufficient discretion because “the Plan Administrator has the sole dis cretion to interpret the terms of the Plan”) (internal quotation marks omitted); Friedrich, 181 F.3d at 1110 n. 5 (finding that administrator had discretionary authority because plan stated that insurer “shall have the sole discretion to interpret the terms of the Plan and to determine eligibility for benefits”) (internal quotation marks omitted). Therefore, because the Plan did not unambiguously confer discretion on Northwest to interpret the terms of the Plan and determine eligibility benefits, the district court correctly determined that it should apply a de novo standard of review. See Abatie, 458 F.3d at 964. IV. While de novo is the correct standard of review in this case, the district court abused its discretion by failing to conduct the proper analysis before admitting extrinsic evidence. If de novo review applies, “[t]he court simply proceeds to evaluate whether the plan administrator correctly or incorrectly denied benefits.” Abatie, 458 F.3d at 963. Under de novo review, the district court should have determined whether Opeta was entitled to benefits based on the evidence in the administrative record and “other evidence as might be admissible under the restrictive rule of Mongeluzo.” Kearney, 175 F.3d at 1094. In Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, we resolved the question of the scope of review that a district court may employ upon de novo review of a plan administrator’s decision. 46 F.3d 938, 943-44 (9th Cir.1995). Agreeing with the Third, Fourth, Seventh, Eighth, and Eleventh Circuits, we held that extrinsic evidence could be considered only under certain limited circumstances. Id. We cited with approval the" }, { "docid": "16540129", "title": "", "text": "i.e.[,] internal medicine and cardiologist[,] have stated [that] I am disabled, due t[o] a diagnosis of Sick Sinus Syndrome. I have a pacemaker and tried to go back to work, but have had multiple problems with sinus taehycardia and arrythmias. I am on medication for the problems but stress seems to create the above problems. Both denial letters do not state any physician has reviewed the issues or contacted my physicians. This policy was offered by my employer along with my additional premium to help supplement my state disability. State disability has paid all along and has stated I am disabled based on my physicianfs’] information. (Id.). On July 5, 2002, plaintiff sent all correspondence relating to the denial of her claim to the California DOI. (Id. at 51). In response to plaintiffs complaint, the California DOI wrote to CNA on July 12, 2002, requesting that it reevaluate plaintiffs claim “and in no later than twenty-one (21) days inform [plaintiff] in writing of the results.” (AR at 49). The California DOI also requested a copy of CNA’s complete file relating to plaintiffs claim. (Id.). CNA responded in writing to the California DOI on July 19, 2002, stating that it would refer plaintiffs file to a medical consultant for review. (Id. at 44). CNA also indicated that it would reevaluate plaintiffs claim and that a decision would be made “within the time frame allotted of 21 days.” (Id.). In reevaluating plaintiffs claim, CNA had Dr. Eugene Truchelut, an internist, review plaintiffs file. (AR at 42). This was the first time in its handling of plaintiffs claim that CNA sought to have plaintiffs records reviewed by a doctor. Prior to this time, defendant CNA only sought medical review from its own in-house nurses. (See, e.g., id. at 25, 56-60, 67-68 & 73-75). CNA provided a summary of plaintiffs file to Dr. Truchelut on its Physician Re view Form, stating only that plaintiffs “test results do not appear to be abnormal and [her] occupation includes data entry and review of medical records.” (AR at 40). CNA asked Dr. Truchelet to state his opinion" }, { "docid": "22800400", "title": "", "text": "principles that ambiguities are construed contra proferentem, and that ambiguities are construed in favor of the insured. Mongeluzo v. Baxter Travenol Disability Benefit Plan, 46 F.3d 938, 942 (9th Cir.1995). We cannot conclude that Standard “unambiguously retained” discretion by means of the phrase “satisfactory written proof that you have become disabled,” because the phrase is subject to at least two reasonable constructions to the contrary. Thus we conclude that the district court was correct in its determination that Mr. Kearney’s claim should be reviewed de novo. II. The Record to be Reviewed. If a court reviews the administrator’s decision, whether de novo as here, or for abuse of discretion, the record that was before the administrator furnishes the primary basis for review. Should the district judge review anything else? Standard moved for an order that the district court review only the materials Kearney had submitted to Standard. The district judge granted the order, following our decision in Mongeluzo, 46 F.3d at 943. In Mongeluzo, we held, following the Fourth Circuit in Quesinberry v. Life Insurance Company, 987 F.2d 1017, 1025 (4th Cir.1993) (en banc), that the district court had discretion to allow evidence that was not before the plan administrator “only when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review.” Mongeluzo, 46 F.3d at 944 (quoting Quesinberry, 987 F.2d at 1025) (internal quota tion marks omitted). Though we allowed consideration of additional evidence because of circumstances peculiar to that case, we emphasized that “a district court should not take additional evidence merely because someone at a later time comes up with new evidence” and “[i]n most cases” only the evidence that was before the plan administrator should be considered. Id. On appeal, Mr. Kearney argues that the district court ought to have taken additional evidence regarding the medical relationship between his cardiac condition and his cognitive ability. But the brief does not say what new evidence, nor was any specific new evidence proposed to the district court. The argument is merely a suggestion that the door be opened to whatever new evidence might" }, { "docid": "16540170", "title": "", "text": "You are performing for income or wages on Your Date of Disability. It is not limited to the specific position You held with Your employer.” (AR at 192) (italics in original). This definition is identical to that found in the WellPoint STD Plan. (Id. at 157). . An individual, such as plaintiff, who was 63 years of age on the date her disability commenced, is entitled to a maximum benefit period of 36 months under the WellPoint LTD Plan. (AR at 176 & 185). . “Tachycardia” is defined as a \"[rjapid beating of the heart, conventionally applied to rates over 100 per minute.” Stedman’s Medical Dictionary (26th ed.1995) at 1758. \"Bradycardia” is defined as a \"[sjlowness of the heartbeat, usually defined (by convention) as a rate under 60 beats per minute.\" Id. at 230. . “Sick sinus syndrome” is a medical condition with “symptoms ranging from dizziness to unconsciousness due to chaotic or absent atrial activity often with bradycardia alternating with tachycardia, recurring ectopic beats including escape beats, and runs of supraventricular and ventricular arrhythmias.\" Stedman’s Medical Dictionary at 1741. . The seven-day elimination period lasted from July 15, 2001, to July 21, 2001. (AR at 1, 4, 11 & 13). . The seven-day elimination period lasted from December 8, 2001, to December 14, 2001. (AR at 27, 52 & 125). . A \"Holter monitor” is \"a technique for long-term, continuous recording of electrocardiographic signals on magnetic tape for scanning and selection of significant but fleeting changes that might otherwise escape notice.” Stedman’s Medical Dictionary at 1125. . Subsequently, 21 days passed, and the California DOI wrote to defendant CNA on August 9, 2002, stating that it had not yet received the “anticipated follow up” to CNA's July 19, 2002 letter. (AR at 38). At that time, the California DOI again requested a copy of CNA’s complete claim file. (Id.). . Defendants do not rebut plaintiff's argument that CNA did not provide these letters to Dr. Truchelut for his review, and the court cannot find any indication in the record indicating that Dr. Truchelut did, in fact, review the letters." } ]

[ { "docid": "12143105", "title": "", "text": "to his case is correct. His further assertion that the rule was not complied with, however, is without merit. Dunlap’s presumption that “a denial of speedy disposition of the case will arise when the accused is continuously under restraint after trial and the convening authority does not promulgate his formal and final action within 90 days of the date of such restraint after completion of trial”, Id. at 138, 48 C.M.R. at 754, was replaced with the test for prejudice in effect prior to Dunlap by the Court in United States v. Banks, 7 M.J. 92 (CMA 1979). The Dunlap rule, however, remains applicable to cases tried before 18 June 1979, the date of the Banks decision, even if the convening authority’s action was accomplished after that date. See, e. g., United States v. Johnson, 10 M.J. 213 (CMA 1981); United States v. Banks, supra at 94. Appellant was placed in post-trial confinement on 5 April 1978 and the convening authority’s action was accomplished on 3 July 1978. Thus, Dunlap’s' applicability is clear for both these events occurred prior to 18 June 1979, the date Banks was decided. The above dates, however, also indicate that Dunlap was complied with because the convening authority’s action was taken within 90 days after appellant was placed in post-trial confinement. This case was remanded for a new staff judge advocate’s review and convening authority’s action by this Court’s order of 15 February 1980. See United States v. Powis, 8 M.J. 809 (NCMR 1980). The convening authority’s action directed by our order was not accomplished until 23 December 1980, and appellant asserts that because this occurred more than 90 days after the remand, Dunlap requires that the charges against him be dismissed. Dunlap, however, is not applicable to such a delay at the appellate level for that holding was intended to protect an accused from unreasonable delay between the time he is placed in post-trial confinement and the date the convening authority first reviews his case. See United States v. Green, 4 M.J. 203, 204 (CMA 1978). Although Dunlap is not applicable to the delay" } ]

[ { "docid": "16332420", "title": "", "text": "at best, a dubious indicator, the Court in Schreck I gave no indication that submitting no comments at all would have constituted incompetency. United States v. Schreck, supra at 228. Assuming arguendo that this counsel did commit error, the accused has suffered no prejudice. Initially, an accused volunteering for the CRS is, realistically, not a threshold action. It is simply not that determining a factor as to whether a person is confined at the CRS. In fact, rather than a qualifying factor for an accused, the regulatory provision limiting CRS confinees to volunteers may properly be viewed as a restraint on convening authorities — specifically, to deter convening authorities from wasting limited space by attempting to rehabilitate those who have no desire to be rehabilitated. Secondly, this accused was sentenced to a dishonorable discharge and five years confinement at hard labor. To even qualify for the CRS his sentence required substantial reduction. At any rate, the evidence establishes that he was not a viable candidate for the CRS. Considering the offenses of which he was convicted, there was, and is, little likelihood that the convening authority will designate the CRS as the place of confinement. At first blush, one may view United States v. Siders, 15 M.J. 272 (C.M.A.1983), as requiring a different result; especially note 3 therein. To the contrary, Siders is readily distinguishable. The trial defense counsel in Siders submitted a Goode reply as well as a personal plea for clemency from the accused, which was lost. The Court held that the accused was entitled to have his plea for clemency considered in haec verba rather than via a cold summary by the staff judge advocate. For purposes of this case, the key point to be drawn from Siders is that it was decided under the accused’s right to have petitions for clemency fully considered by the convening authority. There is a long line of precedents upholding this principle, regardless of the likelihood of the petition’s success. See e.g., United States v. Arnold, 21 U.S.C.M.A. 151, 44 C.M.R. 205 (1972); United States v. Oliver, 42 C.M.R. 906 (A.C.M.R.1970)." }, { "docid": "5446459", "title": "", "text": "this Court is not convinced that plaintiff’s ten-month confinement in C-building can be justified under Almanza. The rationale underlying an Almanza reclassification is weakened in this case as release to the general population would not place plaintiff in the same prison facility as he had been prior to the incident giving rise to the issues herein. Hence, the likelihood of retaliation or related violence is substantially reduced. Moreover, plaintiff denies that he was returned to the general population on October 31, 1975. It is not clear, then, whether plaintiff remains in maximum security or not. Thus, a serious question of fact remains in dispute. For the above stated reasons, defendants’ motion for summary judgment must be denied. An appropriate order will be issued. . Disputes between physicians and prisoners as to the proper treatment are not actionable of § 1983. Edwards v. Broughton, 519 F.2d 1399, C.A. No. 75-1398 (4th Cir. 1975). It is only exceptional circumstances that give rise to a § 1983 claim for failure to provide adequate medical care. . Plaintiff complains that the reclassification has deprived him of (1) being able to receive visits from his family; (2) normal exercising privileges; (3) normal bathing facilities; (4) opportunity to participate in rehabilitative, vocational or educational programs offered other inmates; (5) an additional meal a day. See Breeden v. Jackson, 457 F.2d 578, 581 n. 2 (4th Cir. 1972) (Craven, J., dissenting). . The Court is aware of the delicate problem facing prison officials during the aftermath of a stabbing incident. Temporary isolation of suspected inmates is needed to preserve the safety and security of the prison and its population. But if long term changes in a prisoner’s security classification are to result, the prisoner is to be afforded various due process guarantees. See Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Landman v. Royster, 333 F.Supp. 621 (E.D.Va.1971). If formal disciplinary proceedings are held prior to adjudication of pending criminal charges, a prisoner could be faced with a difficult choice. He could defend himself at the ICC hearing with the danger" }, { "docid": "13456086", "title": "", "text": "who has not violated prison rules in protective segregation contravenes the equal protection clause of the Fourteenth Amendment. All-good further contends that the Eighth Amendment requires an alternative to protective segregation for a prisoner seeking protection from physical harm. We do not agree with these contentions. In Breeden v. Jackson, 457 F.2d 578 (4th Cir.1972), this Court addressed the differences in privileges between inmates in the general population and those in protective custody. In Breeden, a Virginia prisoner was transferred at his own request from the general prison population to maximum security. He complained that the deprivations imposed upon him in maximum security represented cruel and unusual punishment prohibited by the Eighth Amendment. His complaints related to limited recreational or exercise opportunities, the prison menu, and restricted shaving and bathing privileges. Addressing the issue of limited privileges, this Court stated that: So long as the rules of prison management ... “are necessary or reasonable concomitants of imprisonment,” ... so long as the rules are not exercised “in such a manner to constitute clear arbitrariness or caprice,” no constitutional rights are infringed. The deprivations of which the petitioner complains here do not assume constitutional dimensions; they are neither arbitrary nor capricious. Under petitioner’s own claim, they are the usual and accepted regulations imposed in maximum security. They “[do not] amount to . .. denials of equal protection of the laws.” They are manifestly within the discretionary authority of the prison administration. Id. at 580-81. The complaints of Allgood are almost identical to those of the prisoner in Breeden, and we conclude that the prison restrictions, then and now, “are neither arbitrary nor capricious” and are not “denials of equal protection of the laws.” Id. at 581. The test applicable to determine whether there is a violation of equal protection between inmates in the general prison population and those in protective segregation is to “inquire only whether the challenged distinction rationally furthers some legitimate, articulated state purpose.” McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1059, 35 L.Ed.2d 282 (1973). The restriction on privileges granted to Allgood in protective segregation" }, { "docid": "12360781", "title": "", "text": "the prohibition of Article IV(e). We find the relief offered under the Agreement inapplicable to appellant’s case because neither the May nor the July 17 document brought appellant within the ambit of the Agreement. We do not consider the question of whether appellant has waived his right to invoke the Agreement by not raising the issue until after his conviction on Count II. We are especially reluctant to consider waiver here because the record is not clear as to whether appellant was even aware, until after conviction on Count II, that the July 17 “detainer” had been issued against him. United States v. Lawson, 736 F.2d 836, 838-39 (2d Cir.1984); United States v. Cyphers, 656 F.2d 630, 635 (2d Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070 (1977). Courts have found waiver in a number of cases, but defendants in those cases either knew that a detainer had been placed against them, United States v. Rossetti, 768 F.2d 12, 19 (1st Cir.1985); United States v. Eaddy, 595 F.2d 341, 342 (6th Cir.1979), or requested movement from one state to another in direct violation of the Agreement, United States v. Odom, 674 F.2d 228, 229-30 (4th Cir.), cert. denied 457 U.S. 1125, 102 S.Ct. 2946, 73 L.Ed.2d 1341 (1982); United States v. Ford, 550 F.2d 732, 742 (2d Cir.1977), aff'd sub nom. United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). “A detainer is a formal notification, lodged with the authority under which a prisoner is confined, advising that the prisoner is wanted for prosecution in another jurisdiction.” United States v. Kenaan, 557 F.2d 912, 915 (1st Cir.1977), cert. denied, 436 U.S. 943, 98 S.Ct. 2844, 56 L.Ed.2d 784 (1978); see Carchman, 473 U.S. at 719, 105 S.Ct. at 3403; Mauro, 436 U.S. at 358-59, 98 S.Ct. at 1846-47. The congressional committee recommending passage of the Agreement noted that a detainer seriously disadvantages the prisoner against whom it is lodged. Prison officials consider such a prisoner ineligible for desirable work assignments. And the prisoner himself “sometimes loses interest in institutional opportunities because" }, { "docid": "7176536", "title": "", "text": "subject to some restrictions on his activity. Moreover, as we have already observed, it is highly speculative that Hannan would have been paroled even if he had been deemed eligible for parole. Therefore, we perceive no occasion for granting appellant any relief beyond that which the Court of Military Review gave “in an abundance of caution.” Ill The decision of the United States Army Court of Military Review is affirmed. Judges COOK and FLETCHER concur. . Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886. . Article 121, UCMJ, 10 U.S.C. § 921. . Article 133, UCMJ, 10 U.S.C. § 933. . Article 123, UCMJ, 10 U.S.C. § 923. . Article 39(a), UCMJ, 10 U.S.C. § 839(a). . The judge reserved his ruling on a defense motion to dismiss certain charges because of their alleged lack of service-connection. This motion was mooted by the findings of not guilty as to the affected charges. . The Army Clemency Board may waive the maximum service requirement or the minimum term of confinement, so that a theoretical possibility exists of immediate parole for a prisoner serving any term of confinement. United States v. Surry, 6 M.J. 800 (A.C.M.R.1978), pet. denied, 7 M.J. 62 (1979). . Immediately upon the conclusion of the trial, appellant had requested a deferment of confinement, but this request had been denied by the convening authority on September 24, 1979. . According to appellant, his military defense counsel, Major Clark, had also led him to believe that he would receive credit on his sentence to confinement with respect to time spent in pretrial arrest or restriction in lieu of arrest. Even if Clark gave this rash assurance — which we doubt — we are sure that this also was not the inducing cause of the guilty plea. . Appellant claims that he was misadvised by confinement officials that he was ineligible for parole. While technically this information may have been accurate, it ignores the possibility that he could obtain from the Army Clemency Board a waiver of the usual parole eligibility requirements. See United States v. Surry, supra." }, { "docid": "23312582", "title": "", "text": "petitioner there was voluntarily transferred from the general prison population to maximum security because of threats of bodily harm from other inmates. The majority opinion denied him equitable relief or damages because his complaints only “related to limited recreational or exercise opportunities, the prison menu and restricted shaving and bathing privileges.” In sharp contract, Little’s alleged treatment was so unreasonable as to be characterized as vindictive, cruel or inhuman or so intolerable in fundamental fairness that even the Breeden majority would have found a violation of his constitutional rights. See 457 F.2d at 580-581. In any event, Judge Craven’s dissenting opinion in Breeden now appears to have been the rule in the Fourth Circuit since July of 1973. See the 1973 opinion in Woodhous, supra. Here the crucial time period for purposes of damages is from May 1972 to September 1974 when Little was transferred to Menard. During that period, it was already well settled that the treatment he received while in Segregation-Safekeeping status was cruel and unusual punishment. See the 1963-1970 authorities cited in Breeden, supra, 457 F.2d at 580-581 nn. 6-9; see also Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652. And there is no doubt of the continuing validity of Chief Judge Fair-child’s stricture in Knell v. Bensinger, 522 F.2d at 725: “[I]n exercising their informed discretion, officials must be sensitive and alert to the protections afforded prisoners by the developing judicial scrutiny of prison conditions and practices.” Thus while an official “has, of course, no duty to anticipate unforeseeable constitutional developments” (O’Connor v. Donaldson, 422 U.S. 563, 577, 95 S.Ct. 2486, 2495, 45 L.Ed.2d 396), he cannot hide behind a claim that the particular factual predicate in question has never appeared in haec verba in a reported opinion. If the application of settled principles to this factual tableau would inexorably lead to a conclusion of unconstitutionality, a prison official may not take solace in ostrichism. Such asserted ignorance cannot provide a doctrinal safe harbor to the defendants here. It has been both a settled and first principle of the Eighth Amendment, long" }, { "docid": "22279783", "title": "", "text": "McCray v. Sullivan, supra, 509 F.2d at 1335 (twice a week); Krist v. Smith, supra, 309 F.Supp. at 498 (two showers a week); Howard v. Smyth, supra, 365 F.2d at 429 (once a week). . Edelman v. Jordan (1974) 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662. BUTZNER, Circuit Judge (specially concurring): I concur in the judgment based on Judge Russell’s majority opinion because the limited remedy it affords the prisoner is more consistent with the Constitution than the district court’s dismissal of this action. Although the judgment is a step in the right direction, it does not, in my opinion, provide the full remedy that the eighth and fourteenth amendments of the Constitution require. Because other convicts endanger his life, James E. Sweet has been confined since October 1968 in a 9' x 12' segregated cell with only two one-hour periods a week for exercise followed by a shower. The reason why the convicts dislike Sweet is disputed. Whether their animosity is unfounded is of no consequence, for the prison officials know the threat to his life is real. Nevertheless, the warden maintains that Sweet’s segregated confinement is voluntary and that he may return to the prison population at any time. The district court, accepting the warden’s argument, dismissed the complaint. Sweet’s predicament is not unique. The record discloses that more than a score of prisoners in the same institution are confined under similarly harsh conditions because they too are threatened, not because they are being punished for any wrong. Other prisoners’ complaints of assault and rape have previously come to our attention. We therefore convened the court en banc to examine the constitutional issues of this pervasive aspect of prison life. This required us to reconsider Breeden v. Jackson, 457 F.2d 578 (4th Cir. 1972), in which a divided court held that guarding a prisoner from harm by detaining him in maximum security at his own request was not cruel and unusual punishment, even though the conditions of his confinement were identical to those imposed on wrongdoers. In Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir." }, { "docid": "12120522", "title": "", "text": "be suspended, but recommendations from the presiding military judge at the accused’s trial and the accused’s first sergeant, flight chief, immediate supervisor, trainer, and confinement NCOIC that the accused be immediately entered into the 3320th CRS. A mental health evaluation diagnosing the accused as victimized by a personality disorder basically untreatable within the Air Force was the report’s sole document militating against clemency. Although not referenced in the clemency evaluation officer’s report, it is clear from a second report, authored by the accused’s pre-trial confinement hearing officer, that the convening authority was also aware that following the accused’s arrest he had cooperated with Government efforts to prosecute individuals in related cases. The clemency evaluation officer’s report did indicate that the accused was transferred for his own safety from the confinement facility at Travis Air Force Base, California to the confinement facility at Mather Air Force Base, California on 6 April 1981. On 29 May 1981, the special court-martial convening authority, having personally considered all of this clemency information, approved the sentence as adjudged. Significantly, as a part of this action, he also designated the 3320th CRS as the accused’s place of confinement. On 31 July 1981, the supervisory authority approved the sentence. In doing so, however, pursuant to advice provided him by his staff judge advocate, he changed the designated place of confinement from the 3320th CRS to the base detention facility, Travis Air Force Base, California, citing paragraph 97d, MCM, as authority for this action. The advice of the staff judge advocate upon which the supervisory authority based his action, while thoroughly referencing the recommendations contained in the clemency evaluation officer’s report, did not acknowledge the fact that under Air Force Manual 111-1, Military Justice Guide, 2 July 1973, the convening authority’s designation of the 3320th CRS as the accused’s place of confinement reflected a positive decision on his part that the accused should be afforded the additional chance to prove his worth to service and country, offered by entry into the 3320th’s RTDR program. Nor, did the advice suggest that, had the accused not cooperated with the government" }, { "docid": "22279789", "title": "", "text": "the offense. See Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). Sweet is a victim of prison lawlessness, not a perpetrator of prison crime. Even if his years of solitary confinement were considered in the abstract to be neither cruel nor unusual punishment for one who broke a prison rule, Sweet’s confinement cannot be viewed in the abstract. Robinson v. California, supra, 370 U.S. at 667, 82 S.Ct. 1417. Measured by the prison’s own standards of punishment, his solitary confinement is clearly disproportionate to his conduct and therefore constitutes cruel and unusual punishment in violation of the eighth amendment. Since the district court ruled that Sweet had suffered no constitutional wrong, it had no occasion to consider an appropriate remedy. I would overrule Breeden v. Jackson, 457 F.2d 578 (4th Cir. 1972), and remand Sweet’s case. The district court should direct the warden to submit a plan for imprisoning Sweet without depriving him of the privileges accorded other prisoners, so long as he does not violate any disciplinary rules. The plan might employ any of the following alternatives: the isolation or transfer of prisoners who threaten his life, so that Sweet could rejoin the general prison population; provision of additional guards for Sweet so he could regularly exercise, shower, and attend chapel; transferring Sweet to another institution where he could safely be confined; or other measures not readily apparent to a court. The fact that precautions for Sweet’s safe imprisonment may entail additional expense is not a justification for retaining him in solitary confinement in violation of his constitutional rights. Cf. Finney v. Arkansas Board of Correction, 505 F.2d 194, 201 (8th Cir. 1974); Jackson v. Bishop, 404 F.2d 571, 580 (8th Cir. 1968). Only if the warden is unable to devise a plan which will safely alter the present conditions of Sweet’s confinement would I authorize the district court to retain a consultant to investigate and report to the court what changes in the conditions of Sweet’s imprisonment are feasible. In this event, the court should consider appointing a person approved or nominated" }, { "docid": "1085401", "title": "", "text": "the evidence presented during sentencing, and would have been foreseeable had they been provided with guidance such as the factors set forth in 18 U.S.C. § 3572. It would also have been foreseeable to the convening authority at the time he took his initial action; but, it certainly should have been obvious to him when he took his supplementary action. We have no doubt that the military services, of course, have a fundamental interest in appropriately punishing servicemembers, officer and enlisted, rich or poor, who violate the Uniform Code of Military Justice. A military defendant's indigence in no way immunizes him or her from punishment. We believe, however, there are few circumstances that would justify additional imprisonment for a servicemember who is unable to pay an adjudged fine due to indigency. See Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); United States v. Soriano, 22 M.J. 453 (C.M.A.1986); United States v. Vinyard, 3 M.J. 551 (ACMR 1977). Nothing precludes the sentencing authority, the court members in appellant’s case, from imposing on an indigent servicemember, as on any military accused, the maximum penalty prescribed by law, subject, of course, to subsequent review for appropriateness of the sentence. In this case, however, the members adjudged 6 months confinement for these offenses, reflecting their determination that the military’s penal interests required no further term of confinement. See Vasquez v. Cooper, 862 F.2d 250, 255 (10th Cir.1988); Frazier v. Jordan, 457 F.2d 726 (5th Cir.1972). Additionally, the pretrial agreement as we have previously determined, placed a ceiling of 1 year and 1 day on any confinement appellant had to serve. This would indicate the convening authority's determination that the military’s penal interest was adequately protected by confinement for 1 year and 1 day. Even assuming that the convening authority approved the pretrial agreement based upon a misunderstanding of the nature and scope of the fine enforcement provision, we cannot attribute his misunderstanding of the law to the accused such that the accused suffers further confinement. Cf. United States v. Hodges, 22 M.J. 260 (C.M.A.1986). . We want to make" }, { "docid": "22279784", "title": "", "text": "threat to his life is real. Nevertheless, the warden maintains that Sweet’s segregated confinement is voluntary and that he may return to the prison population at any time. The district court, accepting the warden’s argument, dismissed the complaint. Sweet’s predicament is not unique. The record discloses that more than a score of prisoners in the same institution are confined under similarly harsh conditions because they too are threatened, not because they are being punished for any wrong. Other prisoners’ complaints of assault and rape have previously come to our attention. We therefore convened the court en banc to examine the constitutional issues of this pervasive aspect of prison life. This required us to reconsider Breeden v. Jackson, 457 F.2d 578 (4th Cir. 1972), in which a divided court held that guarding a prisoner from harm by detaining him in maximum security at his own request was not cruel and unusual punishment, even though the conditions of his confinement were identical to those imposed on wrongdoers. In Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir. 1973), we held, “A prisoner has a right, secured by the eighth and fourteenth amendments, to be reasonably protected from constant threat of violence and sexual assault by his fellow inmates, and he need not wait until he is actually assaulted to obtain relief.” Accord, Finney v. Arkansas Board of Correction, 505 F.2d 194, 201 (8th Cir. 1974). This salutary principle is not disputed. Therefore, the only issue in this case is the constitutionality of the means employed by the state to provide protection. As the citations in the majority opinion disclose, many cases hold that solitary confinement for a limited time to punish the infraction of prison rules is not unconstitutional. These cases do not, however, answer the critical issue before us, which is the constitutionality of using solitary confinement for an indefinite time to guard a prisoner who has violated no rules. Moreover, cases sanctioning punishment by solitary confinement rest on the premise that the warden’s discipline of unruly prisoners must be upheld to enable him to govern the prison effectively. See Sostre" }, { "docid": "13456085", "title": "", "text": "another institution. Allgood then instituted this action pursuant to 42 U.S.C. § 1988 alleging (1) that prior to his attacks, prison officials failed to protect him adequately from other inmates, (2) that during his attacks the prison guards made no effort to rescue him, and (3) that after the attacks he received inadequate medical treatment. The district court granted summary judgment for the prison officials and held that under Breeden v. Jackson, 457 F.2d 578 (4th Cir.1972), the prison officials had fulfilled any duty to protect Allgood because protective segregation was available to him at all times. The district court further held that affidavits and other supporting documents submitted by prison officials showed that the guards promptly rescued Allgood and that prison officials did not demonstrate a deliberate indifference to Allgood’s medical needs. Allgood appeals. II. On appeal, Allgood’s primary contention is that his confinement in protective segregation violated his Fourteenth and Eighth Amendment rights. He argues that because a prisoner in protective segregation loses privileges afforded those in the general population, placing an inmate who has not violated prison rules in protective segregation contravenes the equal protection clause of the Fourteenth Amendment. All-good further contends that the Eighth Amendment requires an alternative to protective segregation for a prisoner seeking protection from physical harm. We do not agree with these contentions. In Breeden v. Jackson, 457 F.2d 578 (4th Cir.1972), this Court addressed the differences in privileges between inmates in the general population and those in protective custody. In Breeden, a Virginia prisoner was transferred at his own request from the general prison population to maximum security. He complained that the deprivations imposed upon him in maximum security represented cruel and unusual punishment prohibited by the Eighth Amendment. His complaints related to limited recreational or exercise opportunities, the prison menu, and restricted shaving and bathing privileges. Addressing the issue of limited privileges, this Court stated that: So long as the rules of prison management ... “are necessary or reasonable concomitants of imprisonment,” ... so long as the rules are not exercised “in such a manner to constitute clear arbitrariness or" }, { "docid": "23420641", "title": "", "text": "of endangering the life of an inmate informer. In our view, the federal constitution does not require us to impose that choice upon the state prison administration, although quite possibly, (see note 20) state judicial review might require more safeguards against the potential abuse where anonymous and merely generalized accusations form the sole basis for disciplinary action against a prison inmate. II. Judicial Standard of Review The second issue raised by Smith is that the board’s finding of guilt was based on insufficient evidence in that the only testimony was Rabalais’ unsupported and generalized testimony based entirely on information from an unidentified prison informant, the details of which he revealed neither at the formal hearing nor in camera to the board itself. Smith alleges that, at the least, summary judgment was improper, as he claimed factual innocence of the charge, and that an evidentiary hearing should have been afforded by the federal district court whereby Smith could have had an opportunity to disprove the incident upon which the disciplinary action was based. Although the courts are required to recognize a constitutional duty to protect prisoners’ rights, nevertheless “[t]he Supreme Court has articulated for the federal courts a policy of minimum intrusion into the affairs of state prison administration; state prison officials enjoy wide discretion in the operation of state penal institutions.” Williams v. Edwards, 547 F.2d 1206, 1212 (5th Cir. 1977); Campbell v. Beto, 460 F.2d 765, 767 (5th Cir. 1972); Breeden v. Jackson, 457 F.2d 578, 580 (4th Cir. 1972). In reviewing administrative- findings under a federal habeas corpus or a section 1983 complaint, the standard to be applied is whether or not actions of the disciplinary committee were arbitrary and capricious or an abuse of discretion. Thomas v. Estelle, 603 F.2d 488, 490 (5th Cir. 1979), reh. denied, 606 F.2d 321 (5th Cir. 1979); Wilwording v. Swenson, 502 F.2d 844, 851 (8th Cir. 1974), cert. denied, 420 U.S. 912, 95 S.Ct. 835, 42 L.Ed.2d 843 (1975); U. S. v. Smith, 464 F.2d 194, 196 (10th Cir.), cert. denied, 409 U.S. 1066, 93 S.Ct. 566, 34 L.Ed.2d 519 (1972)." }, { "docid": "6750378", "title": "", "text": "is that the defendants’ failure to provide them with recreational periods each day constitutes cruel and unusual punishment in violation of the eighth amendment. To establish a claim of cruel and unusual punishment, the complainant must allege conditions which are so foul, so inhuman, and so violative of basic concepts of decency that they fall within the proscriptions of the eighth amendment. Thomas v. Pate, 493 F.2d 151, 159 (7th Cir.) judgment vacated on other grounds, 419 U.S. 813, 95 S.Ct. 288, 42 L.Ed.2d 39 (1974). See Kimbrough v. O’Neil, 523 F.2d 1057 (7th Cir. 1975); United States ex rel. Miller v. Twomey, 479 F.2d 701 (7th Cir.), cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102 (1973). The plaintiffs’ singular allegation that they are denied recreation periods while confined to safekeeping does not state a claim for relief under Section 1983 for imposition of cruel and unusual punishment. Breeden v. Jackson, 457 F.2d 578, 580 (4th Cir. 1972); Smith v. Swenson, 333 F.Supp. 1253 (W.D.Mo. 1971); see Thomas v. Pate, supra; Aikens v. Lash, 371 F.Supp. 482 (N.D.Ind. 1974), modified, 514 F.2d 55 (7th Cir. 1975). Therefore, the defendants’ motion to dismiss this claim is granted. The third and final claim asserted on behalf of both plaintiffs is that the defendants have refused or been indifferent to their requests for transfers to another correctional institution where they could take advantage of rehabilitational programs and thus enhance their chances for parole, all in violation of rights guaranteed by the first, fourth, and eighth amendments. The defendants contend that Hundley’s claim is moot because he was transferred to Menard pursuant to his request. Bauer, however, was not transferred, and they argue his claim should be dismissed because he has no constitutional right to be transferred to another institution. Attached to the plaintiffs’ complaint are letters to prison officials which, to some degree, explain the background of the plaintiffs’ requests for transfers. As previously stated, Hundley was placed in the safekeeping unit on February 20, 1975. Perhaps as early as March 5, 1975, but not later than March 24, he" }, { "docid": "16332421", "title": "", "text": "convicted, there was, and is, little likelihood that the convening authority will designate the CRS as the place of confinement. At first blush, one may view United States v. Siders, 15 M.J. 272 (C.M.A.1983), as requiring a different result; especially note 3 therein. To the contrary, Siders is readily distinguishable. The trial defense counsel in Siders submitted a Goode reply as well as a personal plea for clemency from the accused, which was lost. The Court held that the accused was entitled to have his plea for clemency considered in haec verba rather than via a cold summary by the staff judge advocate. For purposes of this case, the key point to be drawn from Siders is that it was decided under the accused’s right to have petitions for clemency fully considered by the convening authority. There is a long line of precedents upholding this principle, regardless of the likelihood of the petition’s success. See e.g., United States v. Arnold, 21 U.S.C.M.A. 151, 44 C.M.R. 205 (1972); United States v. Oliver, 42 C.M.R. 906 (A.C.M.R.1970). I believe United States v. Zapata, 12 M.J. 689 (N.M.C.M.R.1981), to have relied on the same principle. That is the vein in which I believe Siders should be applied. Informing the convening authority that one is a volunteer for the CRS is not on the same level as apprising him of a petition for clemency. Additionally, assessing the likelihood of favorable action is integral to testing for prejudice. United States v. Schreck, supra (Cook, Judge, dissenting). My final basis for concluding that the accused was not prejudiced is that after erroneously stating the accused was not a volunteer for the CRS, the review proceeded to evaluate the sentence and the surrounding circumstances as though he was, in fact, a volunteer. After reading the review’s section on clemency in its entirety, I am convinced beyond a reasonable doubt that the convening authority’s opinion was not altered to the accused’s detriment by the supposed misstatement. To return this record for a new review and action merely for the staff judge advocate and convening authority to ritualistically reach" }, { "docid": "12120521", "title": "", "text": "as an accused’s place of confinement in his court-martial action was a proper exercise of Article 64, UCMJ, sentence amelioration powers. Accordingly, since the accused was improperly denied the benefit of his convening authority’s decision granting him another opportunity to prove his worth to the Air Force so that, if successful, he might continue on active duty until his honorable discharge, we set aside the bad conduct discharge. I Following the accused’s trial and prior to the initial action of the convening authority, the accused requested a formal clemency interview. Based upon the accused’s presentation at this interview, (it included a personal expression of the accused’s concerns and a voluntary request for entry into the “return to duty rehabilitation” (RTDR) program conducted by the 3320th CRS), the post-trial clemency evaluation officer found that the accused possessed “outstanding” potential for rehabilitation and recommended his transfer to the 3320th CRS, for immediate entry into the RTDR program. Additionally, the post-trial clemency evaluation officer’s report not only contained a recommendation from the accused’s commander that the accused’s discharge be suspended, but recommendations from the presiding military judge at the accused’s trial and the accused’s first sergeant, flight chief, immediate supervisor, trainer, and confinement NCOIC that the accused be immediately entered into the 3320th CRS. A mental health evaluation diagnosing the accused as victimized by a personality disorder basically untreatable within the Air Force was the report’s sole document militating against clemency. Although not referenced in the clemency evaluation officer’s report, it is clear from a second report, authored by the accused’s pre-trial confinement hearing officer, that the convening authority was also aware that following the accused’s arrest he had cooperated with Government efforts to prosecute individuals in related cases. The clemency evaluation officer’s report did indicate that the accused was transferred for his own safety from the confinement facility at Travis Air Force Base, California to the confinement facility at Mather Air Force Base, California on 6 April 1981. On 29 May 1981, the special court-martial convening authority, having personally considered all of this clemency information, approved the sentence as adjudged. Significantly, as" }, { "docid": "23312581", "title": "", "text": "in denying voluntary segregees [sic] the same rights denied to those segregated because of their dangerous characteristics” (mem. op. at 2). Echoing the Supreme Court’s admonition in Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L.Ed.2d 288, the district court refused the imposition of a requirement on defendants which it characterized as a “guess that the dissenting opinion in the leading case might be adopted years later in another circuit” (mem. op. at 2). The district court also found that defendants were not motivated by actual malice. The opinion concluded by holding that plaintiff was not entitled to money damages because he had not satisfied the requirements of Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214, as made applicable to prison officials by Knell v. Bensinger, supra. Accordingly, defendants’ motion to dismiss was granted. This appeal followed. We reverse and remand. As noted, the principal reason for the dismissal of the amended complaint was the opinion in Breeden v. Jackson, 457 F.2d 578, 580 (4th Cir. 1972). The petitioner there was voluntarily transferred from the general prison population to maximum security because of threats of bodily harm from other inmates. The majority opinion denied him equitable relief or damages because his complaints only “related to limited recreational or exercise opportunities, the prison menu and restricted shaving and bathing privileges.” In sharp contract, Little’s alleged treatment was so unreasonable as to be characterized as vindictive, cruel or inhuman or so intolerable in fundamental fairness that even the Breeden majority would have found a violation of his constitutional rights. See 457 F.2d at 580-581. In any event, Judge Craven’s dissenting opinion in Breeden now appears to have been the rule in the Fourth Circuit since July of 1973. See the 1973 opinion in Woodhous, supra. Here the crucial time period for purposes of damages is from May 1972 to September 1974 when Little was transferred to Menard. During that period, it was already well settled that the treatment he received while in Segregation-Safekeeping status was cruel and unusual punishment. See the 1963-1970 authorities cited in" }, { "docid": "23527636", "title": "", "text": "PER CURIAM. Appellant is presently confined in the United States Penitentiary of Leavenworth, Kansas, serving a sentence lawfully imposed after conviction for the offense of murder in the second degree. By petition presented to the District Court for the District of Kansas he alleged that he was being subjected to cruel and unusual punishment in violation of his constitutional rights under the Eighth Amendment because of prolonged and unreasonable segregated confinement in the maximum security facilities at Leavenworth. After a full evidentiary hearing at which both the appellant and the Chief Correctional Officer testified, the trial court denied relief. We affirm. The basic responsibility for the control and management of penal institutions, including the discipline, treatment and care of those confined, lies with the Attorney General and is not subject to judicial review unless exercised in such a manner as to constitute clear arbitrariness or caprice upon the part of prison officials. Cannon v. Willingham, 10 Cir., 358 F.2d 719 and cases cited. Segregation, as such, is not a cruel nor unusual treatment, punishment or practice. Kostal v. Tinsley, 10 Cir., 337 F.2d 845. Appellant is not presently in segregation as a disciplinary control for specific misconduct but as an administrative control relating to inmates considered to be a “threat to themselves, to others, or to the safety and security of the institution.” Bureau of Prisons Policy Statement, #7400.4, issued 9-9-66. Such a policy is perfectly proper and lawful and its administration requires the highest degree of expertise in the discretionary function of balancing the security of the prison with fairness to the individuals confined. In the case at bar the record reveals that appellant's confinement in segregation is the result of the considered judgment of the prison authorities and is not arbitrary. Appellant has, indeed, been in segregation for a protracted period, continuously for more than two years prior to the present hearing. However, his record during three separate periods when he was allowed confinement “within the population” of a prison reflects a history of participation, directly or indirectly, in conduct of extreme violence. While confined in the United" }, { "docid": "8383048", "title": "", "text": "a constitutional violation. First, his bare suggestion that C/O Carr’s actions came in response to a civil action does not satisfy the causal nexus required by Adams and White, supra. Second, although plaintiffs allegations may suffice to show that C/O Carr may have been motivated by retaliation for plaintiffs utilization of the grievance procedure, a state grievance procedure does not confer any substantive right upon prison inmates. Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988), cert. denied, 488 U.S. 898, 109 S.Ct. 242, 102 L.Ed.2d 231 (1988); Adams, supra. I thus find that retaliation for lodging complaints via such a grievance procedure does not state a claim under Hudspeth, supra, which requires that the retaliation come in response to the exercise of a fundamental right. Plaintiff also maintains, however, that C/O Carr infringed upon his right to free speech by retaliating against him for filing grievances. I disagree. Even assuming Hudspeth contemplates such a broad protection of an inmate’s constitutional rights, I am of the opinion that a supervisor in a prison context does not abuse his discretion when he terminates an inmate who disrupts the supervisory relationship by filing harshly worded grievances. Altizer v. Paderick, 569 F.2d 812 (4th Cir.), cert. denied, 435 U.S. 1009, 98 S.Ct. 1882, 56 L.Ed.2d 391 (1978) (prison work assignments are within the discretion of prison officials); Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (the principle that inmates retain at least some constitutional rights must be weighed against the recognition that prison authorities are best equipped to make difficult decisions regarding prison administration). Accordingly, I shall also grant defendants’ motion for summary judgment as to plaintiffs claims of retaliation. The plaintiff is advised that he may appeal this decision pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure by filing a notice of appeal with this court within 30 days of the date of entry of the Order, or within such extended period as the court may grant pursuant to Rule 4(a)(5) or 4(a)(6). The clerk of the Court is directed to send" }, { "docid": "9331353", "title": "", "text": "Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion). See also Furman v. Georgia, 408 U.S. 238, 329-33, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Marshall, J., concurring). Although the prohibition against cruel and unusual punishment imposes a duty on the federal judiciary to judge the constitutionality of penal measures, it has been recognized that “the requirements of the Eighth Amendment must be applied with an awareness of the limited role to be played by the courts.” Gregg, supra, 428 U.S. at 174, 96 S.Ct. at 2926. Thus, in assessing whether measures taken by prison officials constitute cruel and unusual punishment, deference is traditionally granted to the decisions of prison officials who are charged by society with responsibility for operating correctional institutions. See, e. g., Frazier v. Ciccone, 506 F.2d 1022, 1023-24 (8th Cir. 1974), quoting Sawyer v. Sigler, 445 F.2d 818, 819 (8th Cir. 1971); Breeden v. Jackson, 457 F.2d 578, 580-81 (4th Cir. 1972). As the Court of Appeals for the Fifth Circuit recently stated: “Federal courts are extremely reluctant to limit the freedom of prison officials to classify prisoners as they, in their broad discretion, may deem appropriate, [citations omitted]. State penitentiaries are occupied by convicted felons, either ineligible for or found to be unworthy of probation. By its very nature, the operation of such a prison is a dangerous undertaking. Time and time again, experience has dramatically taught that the management and control of prisons, the prevention of mass violence within prisons, and the safe retention of convicts within prison walls, present problems of the first magnitude, in which failures occur all too often . The authority to manage and control a felony prison should never be unduly restricted or divided. That authority must repose in one well identified place, limited only by the requirements of the law.” Newman v. Alabama, 559 F.2d 283, 287 (5th Cir. 1977) (discussing court-imposed remedies for state prison conditions held to be cruel and unusual), petition for cert. filed, 46 U.S.L.W. 3650 (U.S., Apr. 6, 1978) (No. 77-1422). Hoss contends that his incarceration" } ]

[ { "docid": "23323940", "title": "", "text": "trials the issues of damages and, in some cases, causation, as web as: 1) all claims under the South Carolina Unfair Trade Practices Act; 2) all claims alleging civil conspiracy; 3) all claims involving violations of RICO; 4) all issues that qualify each plaintiff for a claim under the applicable Plan; and 5) all claims against the agents who sold the Plan. The need for these individualized separate trials is conceded. Despite the overwhelming predominance of these individualized issues and claims over the common issue that the majority now certifies for class treatment, the majority has adopted an inventive approach to Rule 23 that allows certification of a class where the predominance requirement of Rule 23(b)(3) is admittedly unmet in the context of the case as a whole. According to the majority, to require the certified issue in this case to predominate over the individualized issues in the action as a whole ignores Rule 23(c)(4)(A), which it appears to view as a fourth avenue for class certification, on equal footing with Rules 23(b)(1), 23(b)(2), and 23(b)(3). In doing so, the majority glorifies Rule 23(c)(4)(A) — a housekeeping rule that authorizes a court to certify for class treatment “particular issues” in a case that otherwise satisfies Rule 23(a) and 23(b)— with the effect of materially rewriting Rule 23 such that Rule 23(b)(3)’s requirements no longer need be applied to “[a]n action,” see Fed.R.Civ.P. 23(b), but rather to any single issue, no matter how small. Not only does the majority’s approach expand Rule 23 beyond its intended reach, but it also creates a direct conflict with the Fifth Circuit which has held: A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) in that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial. Castano v. American Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir.1996); see also Allison v. Citgo Petroleum Corp., 151" } ]

[ { "docid": "10650225", "title": "", "text": "test. See Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1202 (10th Cir.2000) (\"We employ the transactional approach of the Restatement (Second) of Judgments....\"); In re Intelogic Trace, Inc., 200 F.3d 382, 386 (5th Cir.2000) (holding that, in determining whether two suits \"involved the same cause of action, we apply the transactional test of the Restatement (Second) of Judgments\"); Stanton v. D.C. Court of Appeals, 127 F.3d 72, 78 (D.C.Cir.1997) (\"The District of Columbia, like the majority of jurisdictions, has adopted the Second Restatement’s ‘transactional’ approach. ...”); Porn v. Nat’l Grange Mut. Ins. Co., 93 F.3d 31, 34 (1st Cir.1996) (\"In defining the cause of action for res judicata purposes, this circuit has adopted the ‘transactional’ approach of the Restatement (Second) of Judgments.”); Keith v. Aldridge, 900 F.2d 736, 740 (4th Cir.1990) (\"Consistent with the modern trend, ... we have adopted a transactional approach to the identity of claims question. ... ”). . Some have been critical of the piecemeal certification of class action status for claims within a case. See Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 446-47 (4th Cir. 2003) (Niemeyer, J., dissenting) (arguing that the predominance requirement in Fed. R.Civ.P. 23(b) applies to the action as a whole, not to individual subclasses or claims); Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir. 1996) (\"The proper interpretation of the interaction between [Fed.R.Civ.P. 23] subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.”). We did not directly address the propriety of such partial certification in Klay. . We emphasize the limited scope of our holding. We do not mean to suggest in any general sense that claims based alternatively on harm and conspiracy to harm are sufficiently distinct to prevent the application of res judicata if those claims are pursued separately. But, in this close case, our prior pronouncements about the gulf between these particular conspiracy and contract-based claims weigh heavily in" }, { "docid": "14397494", "title": "", "text": "cases); see also MTBE, 209 F.R.D. at 349 (“Because Rule 23(b)(3) requires that common issues predominate, courts deny certification where individualized issues of fact abound. It is for this reason that the majority of courts refuse to certify mass tort actions brought pursuant to Rule 23(b)(3).” (citations omitted)). Further, state courts in Texas and Illinois have already denied class certification in nearly identical needlestick cases. Despite plaintiffs’ best efforts to avoid the problems of these other needlestick cases, as well as most other products liability actions, the outcome of this class certification motion is no different than those cases- — class certification must be denied. Plaintiffs attempt to avoid the shortfalls of previous product liability class actions by moving only for certification on two issues they argue are common to the class. Plaintiffs move under Rule 23(c)(4)(A) to certify the issues of design defect and negligent design. That rule states that when appropriate “an action may be brought or maintained as a class action with respect to particular issues.” Fed.R.Civ.P. 23(c)(4)(A). Plaintiffs argue that the rule allows this Court to certify a class on any one particular issue in the case, so long as that issue meets all the requirements of Rule 23(a) and meets the criteria for one of the provisions of Rule 23(b). Defendants argue that such a reading of Rule 23(c)(4) would obliterate the predominance requirement by permitting a district court to “manufacture predominance through the nimble use .of subdivision (e)(4).” Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir.1996). In Castano the Fifth-Circuit held, [t]he proper interpretation of the interaction between subdivisions (b)(3) and (e)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (e)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial. Reading rule 23(c)(4) as allowing a court to sever issues until the remaining common issue predominates over the remaining individual issues would eviscerate the predominance requirement of rule 23(b)(3); the result would be automatic certification in every case where there is a" }, { "docid": "8638505", "title": "", "text": "that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.’’). We did not directly address the propriety of such partial certification in Klay. Borrero v. United Healthcare of N.Y., Inc., 610 F.3d 1296, 1310 n. 5 (11th Cir.2010)(alterations in original). The Tenth Circuit also appears to have refrained from taking a side: Plaintiffs urge us to consider a \"hybrid” certification whereby the liability stage might be certified for class treatment under Rule 23(b)(2) even if the damages stage does not qualify for such treatment. See Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 167-69 (2d Cir.2001). Compare Lemon v. Int’l Union of Operating Engr's, Local No. 139, AFL-CIO, 216 F.3d 577, 581 (7th Cir.2000), and Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 898 (7th Cir.1999), with Allison v. Citgo Petroleum Corp., 151 F.3d 402, 420-22 (5th Cir. 1998). We do not need to rule on a hybrid possibility because in the instant case, the liability stage does not satisfy either Rules 23(b)(2) or 23(b)(3). The district court's ruling that plaintiffs did not allege a sufficient policy, practice or pattern of discrimination to warrant class treatment for liability determination is not an abuse of discretion. Monreal v. Potter, 367 F.3d at 1237 n. 12 (Ebel, J.). . The Tenth'Circuit issued that opinion on December 8, 2014, well into the Court's deliberations on this Motion. . The Tenth Circuit cites to a section of Newberg for its predominance analysis; the section, in its entirety, states: Though courts usually do not state it quite this way, the predominance analysis logically entails two distinct steps—the characterization step and the weighing step. A court must first characterize the issues in the case as common or individual and then weigh which predominate. Issues are characterized as common or individual primarily based on the nature of the evidence: • If \"the members of a proposed class will need to present evidence that varies from member to member, then it is an individual" }, { "docid": "19309552", "title": "", "text": "rules and concluding that the substantive law of each plaintiff’s home state would govern in a pharmaceutical product liability action). . Rhone-Poulenc Rorer involved class certification under Rule 23(c)(4). The principles discussed therein apply equally to certification under Rule 23(b)(3). . Defendants also note, and the Court agrees, that determining the relief to which class members are entitled would require individual proof. . The Court notes that there is disagreement amongst district courts with regard to whether, under Rule 23(c)(4), the predominance evaluation is a limited inquiry, focusing only on the individual issue for which class treatment is sought, or requires consideration of the cause of action as a whole. See e.g., In re Fedex Ground Package System, Inc., Employment Practices Litigation, 2010 WL 1652863, *1-2 (N.D.Ind. Apr. 21, 2010) (not reported) (Miller, J.); In re General Motors Corp. Dex-Cool Prods., 241 F.R.D. 305, 313-314 (S.D.Ill.2007) (Murphy, J.). The Fifth Circuit Court of Appeals has been critical of district courts that fail to consider the case as a whole when evaluating predominance under Rule 23(c)(4). See Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir.1996): A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.... Reading rule 23(c)(4) as allowing a court to sever issues until the remaining common issue predominates over the remaining individual issues would eviscerate the predominance requirement of rule 23(b)(3); the result would be automatic certification in every case where there is a common issue, a result that could not have been intended. On the other hand, an opinion out of the Ninth Circuit Court of Appeals indicates that an issue-specific predominance test is appropriate. See Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996) (stating that “[e]ven if common questions do not predominate over the individual questions so that class certification" }, { "docid": "19309553", "title": "", "text": "See Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir.1996): A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.... Reading rule 23(c)(4) as allowing a court to sever issues until the remaining common issue predominates over the remaining individual issues would eviscerate the predominance requirement of rule 23(b)(3); the result would be automatic certification in every case where there is a common issue, a result that could not have been intended. On the other hand, an opinion out of the Ninth Circuit Court of Appeals indicates that an issue-specific predominance test is appropriate. See Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996) (stating that “[e]ven if common questions do not predominate over the individual questions so that class certification of the entire action is warranted, Rule 23 authorizes the district court in appropriate cases to isolate the common issues under Rule 23(c)(4)(A) and proceed with class treatment of these particular issues.”) (citations omitted). The Seventh Circuit has not spoken on the matter. In the instant case, however, the Court finds that individual questions of law and fact predominate the putative common issues as well as the case as a whole; therefore, the Court need not resolve the matter for purposes of this Order." }, { "docid": "20913589", "title": "", "text": "be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.” F.R.Civ.P. 23(c)(4). Speaking about the similar Canadian class action law, Justice Mackenzie of the British Columbia Supreme Court observed that, \"if a threshold issue can be identified which is common to all claims, that issue can be litigated in a class action format, .leaving individual issues to be dealt with later in separate trials if necessary, depending on the outcome of the threshold issue.” Harrington v. Dow Corning Corp., No. C954330 at 14-15 (British Columbia Supreme Court, April 11, 1996). Other commentators, discussing our version of the class action rule, agree. Class treatment ... has been extended solely to the common questions of law and fact concerning liability, preserving the right to an individual trial on damages. In some cases courts have gone slightly beyond the conventional bifurcation of liability and damage elements of the tort cause of action. They have instead designated certain common liability issues for class treatment, while remanding the remaining liability questions relating to the circumstances of each class member to an individual trial before, or along with, determination of damages. David Rosenberg, Class Actions for Mass Torts: Doing Individual Justice by Collective Means, 62 Ind. L.J. 561, 569 (1987). And as a respected treatise observed, \"[t]he effect [of Rule 23(c)(4)] may be to make the common issues in the recast class action 'predominate' for purposes of Rule 23(b)(3).” 7A Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1778. Some courts, however, have rejected the proposition that Rule 23(c)(4) can be utilized in this manner. See Castano v. American Tobacco Co., 84 F.3d 734, 745-46 n. 21 (5th Cir.1996) (\"A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.”); Arch" }, { "docid": "23637585", "title": "", "text": "to the District Court’s reservations, a court may employ Rule 23(c)(4)(A) to certify a class on a particular issue even if the action as a whole does not satisfy Rule 23(b)(3)’s predominance requirement. Second, we hold that the District Court committed legal error in concluding that defendants’ concession eliminated common liability issues from Rule 23(b)(3)’s predominance analysis. Third, this error caused the District Court to exceed its allowable discretion in concluding that individualized liability issues predominated over common ones, and that the class action mechanism is not a superior litigation vehicle under these circumstances. A. A District Court May Certify a Class as to Specific Issues Regardless of Whether the Entire Claim Satisfies Rule 23(b)(3) Whether a court may employ Rule 23(c)(4)(A) tó certify a class as to a specific issue where the entire claim does not satisfy Rule 23(b)(3)’s predominance requirement is a matter of first impression in this Circuit. See Robinson, 267 F.3d at 167 n. 12 (identifying question as one of first impression and declining to resolve it). It also is a matter as to which the Circuits have split. Id. The Fifth Circuit has adopted a “strict application” of Rule 23(b)(3)’s predominance requirement. Id. Under this view, “[t]he proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.” Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir.1996). The Ninth Circuit holds a different view. Pursuant to that court’s precedent, “[e]ven if the common questions do not predominate over the individual questions so that class certification of the entire action is warranted, Rule 23 authorizes the district court in appropriate cases to isolate the common issues under Rule 23(c)(4)(A) and proceed with class treatment of these particular issues.” Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996); cf. Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 439 (4th Cir.2003) (holding that courts may employ Rule 23(c) to" }, { "docid": "23323941", "title": "", "text": "23(b)(3). In doing so, the majority glorifies Rule 23(c)(4)(A) — a housekeeping rule that authorizes a court to certify for class treatment “particular issues” in a case that otherwise satisfies Rule 23(a) and 23(b)— with the effect of materially rewriting Rule 23 such that Rule 23(b)(3)’s requirements no longer need be applied to “[a]n action,” see Fed.R.Civ.P. 23(b), but rather to any single issue, no matter how small. Not only does the majority’s approach expand Rule 23 beyond its intended reach, but it also creates a direct conflict with the Fifth Circuit which has held: A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) in that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial. Castano v. American Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir.1996); see also Allison v. Citgo Petroleum Corp., 151 F.3d 402, 421-22 (5th Cir.1998). In addition, the majority opinion attempts to shoehorn this case, even with its limited focus on a single issue, into the parameters of our distinguishable holding in Central Wesleyan College v. W.R. Grace & Co., 6 F.3d 177 (4th Cir.1993), in which we affirmed the conditional certification of a class of asbestos litigants. In doing this, the majority fails to consider the broad complexities raised by the unaddressed issues in this litigation and fails to apply the later and more specifically applicable controlling ruling of the Supreme Court in Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Finally, the majority fails meaningfully to address overt conflicts of interest existing among members of the conditionally certified class. For example, it does not attempt to explain how the conditionally certified class may include, on the one hand, employers seeking rescission of the insurance contract and the return of premiums paid, and, on the other hand, their employees seeking enforcement of the same insurance contract to" }, { "docid": "8638502", "title": "", "text": "thus \"could not have been intended.” 84 F.3d at 745 n. 21. The Fifth Circuit’s approach attracted the adherence of a revered jurist on the Fourth Circuit-—although not the Fourth Circuit itself. The Honorable Paul V. Niemeyer, United States Circuit Judge for the Fourth Circuit, endorsed the Fifth Circuit’s view in an opinion concurring in part and dissenting in part from an opinion in which the Fourth Circuit adopted the opposing view: Despite the overwhelming predominance of these individualized issues and claims over the common issue that the majority now certifies for class treatment, the majority has adopted an inventive approach to Rule 23 that allows certification of a class where the predominance requirement of Rule 23(b)(3) is admittedly unmet in the context of the case as a whole. According to the majority, to require the certified issue in this case to predominate over the individualized issues in the action as a whole ignores Rule 23(c)(4)(A), which it appears to view as a fourth avenue for class certification, on equal footing with Rules 23(b)(1), 23(b)(2), and 23(b)(3). In doing so, the majority glorifies Rule 23(c)(4)(A)—a housekeeping rule that authorizes a court to certify for class treatment \"particular issues” in a case that otherwise satisfies Rule 23(a) and 23(b)—with the effect of materially rewriting Rule 23 such that Rule 23(b)(3)’s requirements no longer need be applied to \"[a]n action,” see Fed.R.Civ.P. 23(b), but rather to any single issue, no matter how small. Not only does the majority’s approach expand Rule 23 beyond its intended reach, but it also creates a direct conflict with the Fifth Circuit which has held: A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) in that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial. Castano v. American Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir. 1996). Gunnells v. Healthplan Servs., Inc., 348 F.3d at 446-47." }, { "docid": "3298135", "title": "", "text": "questions of liability!!,]” the Plaintiffs cannot utilize rule 23(c)(4)(A) as the basis for class certification because that rule does not permit such certification in the absence of predominance. They rely primarily on the case of Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir.1996), in support of their argument. In Castaño, the court noted that “[a] district court cannot manufacture predominance through the nimble use of subdivision (c)(4).” Id. at 745 n. 21. It further noted that “[t]he proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.” Id. at 745-746 n. 21. The court concluded by noting that the result of any other reading of rule (c)(4) “would be automatic certification in every case where there is a common issue, a result that could not have been intended.” Id. at 746 n. 21; accord Allison v. Citgo Petroleum Corp., 151 F.3d 402, 421-422 (5th Cir.1998). Measured against this standard, which the Court finds persuasive, the Defendants’ argument carries the day. In this Court’s view, it would defy logic and run counter to the record before this Court to find, as is required by rule 23(b)(3), “that the questions of law or fact common to the members of the class predominate over any questions affect ing only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Militating against a finding of predominance are the findings of Judge McCoun with regard to the issue of liability. As he correctly determined, “[wjhile Plaintiffs’ theories of defectiveness and negligence are constant, the circumstances of this program were not, and the proof will likely involve distinct considerations of each shipment of Fyfanon, its storage, and the circumstance of each spraying.” Additionally, as Judge McCoun observed, “[t]he potential claims for damages are necessarily highly individualized as well[,]” based on considerations of the circumstances of each individual’s" }, { "docid": "23323959", "title": "", "text": "to examine the various other issues presented in the entire action to determine whether the required “cohesiveness” is present to “legitimize! ] representative action in the first place” — as mandated by 23(b)(3), see Amchem, 521 U.S. at 623, 117 S.Ct. 2231 — and by jumping to 23(c)(4), the majority not only bypasses one of the most essential and most important checks imposed by Rule 23 on certifying Rule 23(b)(3) classes, it also opens a conflict among the circuits on this issue. The Fifth Circuit has applied the Rule with the dogged requirement of satisfying predominance before considering other aspects of the Rule in a 23(b)(3) class. See Smith v. Texaco, Inc., 263 F.3d 394, 409 (5th Cir.2001) (later withdrawn pursuant to settlement by the parties, see 281 F.3d 477 (5th Cir.2002)); Allison, 151 F.3d at 421-22; Castano v. American Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir.1996). In Smith, the court explained its position on the proper relationship between the predominance requirement and Rule 23(c)(4): The predominance inquiry involves a comparison of the issues common among the class members and the issues indi vidual to them. This analysis remains unchanged whether a class is certified under one or more sections of rule 23(b). The inquiry’s constancy serves as an important limitation on the use of bifurcation by preventing a district court from manufacturing predominance through the “nimble use” of Rule 23(c)(4). Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir.1996). Therefore, the cause of action, as a whole, must satisfy rule 23(b)(3)’s predominance requirement. Id. Once that requirement is met, rule 23(c)(4) is available to sever the common issues for a class trial. To read the rule not as a housekeeping rule, but instead as allowing a court to pare issues repeatedly until predomination is achieved, would obliterate rule 23(b)(3)’s predominance requirement, resulting in automatic certification in every case in which any common issue exists, a result drafters of the rule could not have intended. 263 F.3d at 409; see also Allison, 151 F.3d at 421-22. Cf. Valentino v. Carter-Wallace, Inc., 97 F.3d" }, { "docid": "20913590", "title": "", "text": "remanding the remaining liability questions relating to the circumstances of each class member to an individual trial before, or along with, determination of damages. David Rosenberg, Class Actions for Mass Torts: Doing Individual Justice by Collective Means, 62 Ind. L.J. 561, 569 (1987). And as a respected treatise observed, \"[t]he effect [of Rule 23(c)(4)] may be to make the common issues in the recast class action 'predominate' for purposes of Rule 23(b)(3).” 7A Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1778. Some courts, however, have rejected the proposition that Rule 23(c)(4) can be utilized in this manner. See Castano v. American Tobacco Co., 84 F.3d 734, 745-46 n. 21 (5th Cir.1996) (\"A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.”); Arch v. American Tobacco Co., No. CIV. A. 96-5903, 1997 WL 312112, at *25 (E.D.Pa. June 3, 1997) (\"Plaintiffs cannot read the predominance requirement out of (b)(3) by using (c)(4) to sever issues until the common issues predominate over the individual issues.”). . While all of the implant claims allege that silicone is toxic, some also seek damages based on independent allegations — such as the need for surgical removal of the implant following rupture. . The primary issues remaining for trial would be (1) whether the plaintiff was in fact injured by her exposure to silicone (the so-called \"specific causation\" element of the case, see Joseph Sanders, From Science to Evidence: The Testimony on Causation in the Bendectin Cases, 46 Stan.L.Rev. 1, 14 (1993)); and (2) damages. See Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1200 (6th Cir.1988); DeLuca v. Merrell Dow Pharm., Inc., 911 F.2d 941, 958 (3d Cir.1990); Kelley v. American Heyer-Schulte Corp., 957 F.Supp. 873, 875 (W.D.Tex.1997) (\"In order to establish her claim, the Plaintiff must show both general and specific" }, { "docid": "14397495", "title": "", "text": "rule allows this Court to certify a class on any one particular issue in the case, so long as that issue meets all the requirements of Rule 23(a) and meets the criteria for one of the provisions of Rule 23(b). Defendants argue that such a reading of Rule 23(c)(4) would obliterate the predominance requirement by permitting a district court to “manufacture predominance through the nimble use .of subdivision (e)(4).” Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir.1996). In Castano the Fifth-Circuit held, [t]he proper interpretation of the interaction between subdivisions (b)(3) and (e)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (e)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial. Reading rule 23(c)(4) as allowing a court to sever issues until the remaining common issue predominates over the remaining individual issues would eviscerate the predominance requirement of rule 23(b)(3); the result would be automatic certification in every case where there is a common issue, a result that could not have been intended. Castano, 84 F.3d at 745 n. 21 (citations omitted). The Second Circuit has not addressed the issue directly, but noted in Robinson v. Metro-North Commuter Railroad Co., with respect to the interaction between (c)(4) and (b)(3), “[although we do not decide the question, we note that it would be an issue of first impression in this circuit and caution that an alternative understanding of the interaction of (b)(3) and (e)(4) to that set forth in Castaño has been advanced elsewhere.” Robinson, 267 F.3d 147, 167 n. 12 (2d Cir.2001) (citing Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996) and In re Tetracycline Cases, 107 F.R.D. 719, 727 (W.D.Mo.1985)). The cases cited by the Robinson court held that certification of only common issues is permissible even where those common issues do not predominate over the individual issues found in the entire cause of action. See Valentino, 97 F.3d at 1234; Tetracycline, 107 F.R.D. at 727. This Court need not decide whether Rule 23(c)(4) permits" }, { "docid": "22125639", "title": "", "text": "in Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir.1996), that stated: \"The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.” Id. at 745 n. 21. Allhough we do not decide the question, we note that it would be an issue of first impression in this circuit and caution that an alternative understanding of the interaction of (b)(3) and (c)(4) to that set forth in Castano has been advanced elsewhere. See, e.g., Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996) (\"Even if the common questions do not predominate over the individual questions so that class certification of the entire action is warranted, Rule 23 authorizes the district court in appropriate cases to isolate the common issues under Rule 23(c)(4)(A) and proceed with class treatment of these particular issues.”); In re Tetracycline Cases, 107 F.R.D. 719, 727 (W.D.Mo.1985) (\"[T]he appropriate meaning of Rule 23(b)’s predominance requirement, as applied in the context of a partial class certification request under Rule 23(c)(4)(A), is simply that the issues covered by the request be such that their resolution (as a class matter) will materially advance a disposition of the litigation as a whole.”). . The Equal Employment Advisory Council, as amicus curiae on behalf of Metro North, advances an additional argument against partial class certification which, though speculative at this stage, nonetheless warrants mention: that partial certification would risk violating the Re-examination Clause of the Seventh Amendment. The Re-examination Clause provides in relevant part that \"no fact tried by a jury shall be otherwise reexamined in any Court of the United States.\" U.S. Const, amend. VII. Amicus curiae contends that given the number of members in the putative class, the district court is likely to try the remedial phase of each class member's claim before a separate jury from the one that considers the liability phase, and that, should this occur, overlapping factual issues would" }, { "docid": "10650226", "title": "", "text": "Servs., Inc., 348 F.3d 417, 446-47 (4th Cir. 2003) (Niemeyer, J., dissenting) (arguing that the predominance requirement in Fed. R.Civ.P. 23(b) applies to the action as a whole, not to individual subclasses or claims); Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir. 1996) (\"The proper interpretation of the interaction between [Fed.R.Civ.P. 23] subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.”). We did not directly address the propriety of such partial certification in Klay. . We emphasize the limited scope of our holding. We do not mean to suggest in any general sense that claims based alternatively on harm and conspiracy to harm are sufficiently distinct to prevent the application of res judicata if those claims are pursued separately. But, in this close case, our prior pronouncements about the gulf between these particular conspiracy and contract-based claims weigh heavily in our decision." }, { "docid": "8638504", "title": "", "text": "Despite Judge Niemeyer’s concern with creating a Circuit split, the Second Circuit, the Ninth Circuit, and, of course, the Seventh Circuit have all held that subclasses can be used to satisfy predominance concerns since at least 2001, two years before Gunnells v. Healthplan Services, Inc. See Zinser v. Accufix Research Inst., Inc., 253 F.3d at 1189-90, 1192 n. 8. See Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 167-69 (2d Cir.2001); Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894, 898 (7th Cir.1999). The Eleventh Circuit has refrained from taking a side on this question: Some have been critical of the piecemeal certification of class action status for claims within a case. See Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 446-47 (4th Cir. 2003) (Niemeyer, J., dissenting)(arguing that the predominance requirement in Fed.R.Civ.P. 23(b) applies to the action as a whole, not to individual subclasses or claims); Castaño v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir. 1996) (\"The proper interpretation of the interaction between [Fed.R.Civ.P. 23] subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.’’). We did not directly address the propriety of such partial certification in Klay. Borrero v. United Healthcare of N.Y., Inc., 610 F.3d 1296, 1310 n. 5 (11th Cir.2010)(alterations in original). The Tenth Circuit also appears to have refrained from taking a side: Plaintiffs urge us to consider a \"hybrid” certification whereby the liability stage might be certified for class treatment under Rule 23(b)(2) even if the damages stage does not qualify for such treatment. See Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 167-69 (2d Cir.2001). Compare Lemon v. Int’l Union of Operating Engr's, Local No. 139, AFL-CIO, 216 F.3d 577, 581 (7th Cir.2000), and Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 898 (7th Cir.1999), with Allison v. Citgo Petroleum Corp., 151 F.3d 402, 420-22 (5th Cir. 1998). We do not need to rule on a hybrid possibility because in" }, { "docid": "23637586", "title": "", "text": "matter as to which the Circuits have split. Id. The Fifth Circuit has adopted a “strict application” of Rule 23(b)(3)’s predominance requirement. Id. Under this view, “[t]he proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.” Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir.1996). The Ninth Circuit holds a different view. Pursuant to that court’s precedent, “[e]ven if the common questions do not predominate over the individual questions so that class certification of the entire action is warranted, Rule 23 authorizes the district court in appropriate cases to isolate the common issues under Rule 23(c)(4)(A) and proceed with class treatment of these particular issues.” Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996); cf. Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 439 (4th Cir.2003) (holding that courts may employ Rule 23(c) to certify a class as to one claim even though all of plaintiffs’ claims, taken together, do not satisfy the predominance requirement). We agree with the Ninth Circuit’s view of the matter. First, the plain language and structure of Rule 23 support the Ninth Circuit’s view. Rule 23(c)(4) provides as follows: When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly. Fed.R.Civ.P. 23(c)(4) (emphases added). As the rule’s plain language and structure establish, a court must first identify the issues potentially appropriate for certification “and ... then” apply the other provisions of the rule, ie., subsection (b)(3) and its predominance analysis. See Gun-nells, 348 F.3d at 439 (reasoning that the rule’s language provides this “express command” that “courts have no discretion to ignore”). Second, the Advisory Committee Notes confirm this understanding. With respect to subsection (c)(4), the notes" }, { "docid": "23323918", "title": "", "text": "“the entire action.” The dissent does not discuss, let alone distinguish, most of the cases we cite; it simply maintains that they do not exist. See post at 63 (dissent noting it can “identify” no circuit precedent supporting the majority’s holding). Just as confounding, is the dissent’s contention that the Fifth Circuit has adopted the dissent’s approach and that we, in assertedly refusing to follow the Fifth Circuit, create a circuit conflict. See post at 446-447, 452-453 (citing Smith v. Texaco, Inc., 263 F.3d 394 (5th Cir.2001), Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir.1998), and Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir.1996)). In fact, the Fifth Circuit cases do not state, let alone hold, as the dissent would, that “the entire action,” or “the action as a whole” — i.e., all causes of action against all parties — must satisfy Rule 23(b)(3)’s predominance requirement before a court can employ Rule 23(c)(4) to certify a class. Rather, the Fifth Circuit cases merely require that “a cause of action, as a whole, must satisfy rule 23(b)(3)’s predominance requirement” before “rule 23(c)(4) is available.” See Smith, 263 F.3d at 409 (emphasis added); Allison, 151 F.3d at 421-22; Castano, 84 F.3d at 745 n. 21. To be sure, as the Second Circuit has noted,there is a circuit conflict as to whether predominance must be shown with respect to an entire cause of action, or merely with respect to a specific issue, in order to invoke (c)(4). See Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 167 n. 12 (2d Cir.2001) (noting the Fifth Circuit’s “strict application of the (b)(3) predominance inquiry to the entire pattern or practice claim” before a court can invoke (c)(4) and further noting that “an alternative understanding of the interaction of (b)(3) and (c)(4) ... has been advanced elsewhere” including by the Ninth Circuit in Valentino, 97 F.3d at 1234). But we have no need to enter that fray (and similarly the dissent’s ruminations about “pinhole” issue certification have no relevance here) because, as we have demonstrated within, in this case Plaintiffs’ cause" }, { "docid": "22125638", "title": "", "text": "counsel; (3) indicate the relief sought; (4) explain any special risks of being a class member, such as being bound by the judgment; (5) describe clearly the procedures and deadlines for opting out; and (6) note the right of any class member to appear in the action through counsel. See Federal Judicial Center, Manual for Complex Litigation § 30.211, at 225 (3d ed.1995). . Because we hold that the liability phase of the pattern-or-practice claim is appropriate for (b)(2) class treatment, we are not required to respond to Class Plaintiffs’ contention that the liability phase is also appropriate for (b)(3) class certification. When faced with the question in Allison, the Fifth Circuit rejected (b)(3) certification of the liability phase. The Allison court reached this conclusion after applying the (b)(3) predominance requirement to the pattern-or-practice claim “as a whole” and finding that the \"individual-specific issues” predominated. Allison, 151 F.3d at 421; see Smith, 263 F.3d at 409-10. The court’s strict application of the (b)(3) predominance inquiry to the entire pattern-or-practice claim was based on a footnote in Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir.1996), that stated: \"The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.” Id. at 745 n. 21. Allhough we do not decide the question, we note that it would be an issue of first impression in this circuit and caution that an alternative understanding of the interaction of (b)(3) and (c)(4) to that set forth in Castano has been advanced elsewhere. See, e.g., Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996) (\"Even if the common questions do not predominate over the individual questions so that class certification of the entire action is warranted, Rule 23 authorizes the district court in appropriate cases to isolate the common issues under Rule 23(c)(4)(A) and proceed with class treatment of these particular issues.”); In re Tetracycline Cases, 107 F.R.D. 719," }, { "docid": "8638503", "title": "", "text": "and 23(b)(3). In doing so, the majority glorifies Rule 23(c)(4)(A)—a housekeeping rule that authorizes a court to certify for class treatment \"particular issues” in a case that otherwise satisfies Rule 23(a) and 23(b)—with the effect of materially rewriting Rule 23 such that Rule 23(b)(3)’s requirements no longer need be applied to \"[a]n action,” see Fed.R.Civ.P. 23(b), but rather to any single issue, no matter how small. Not only does the majority’s approach expand Rule 23 beyond its intended reach, but it also creates a direct conflict with the Fifth Circuit which has held: A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) in that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial. Castano v. American Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir. 1996). Gunnells v. Healthplan Servs., Inc., 348 F.3d at 446-47. Despite Judge Niemeyer’s concern with creating a Circuit split, the Second Circuit, the Ninth Circuit, and, of course, the Seventh Circuit have all held that subclasses can be used to satisfy predominance concerns since at least 2001, two years before Gunnells v. Healthplan Services, Inc. See Zinser v. Accufix Research Inst., Inc., 253 F.3d at 1189-90, 1192 n. 8. See Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 167-69 (2d Cir.2001); Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894, 898 (7th Cir.1999). The Eleventh Circuit has refrained from taking a side on this question: Some have been critical of the piecemeal certification of class action status for claims within a case. See Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 446-47 (4th Cir. 2003) (Niemeyer, J., dissenting)(arguing that the predominance requirement in Fed.R.Civ.P. 23(b) applies to the action as a whole, not to individual subclasses or claims); Castaño v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir. 1996) (\"The proper interpretation of the interaction between [Fed.R.Civ.P. 23] subdivisions (b)(3) and (c)(4) is" } ]

[ { "docid": "22255662", "title": "", "text": "almost three years after the judgment was entered. Wood’s motion, therefore, cannot be granted under Rule 60(b)(3) Rule 60(b) also provides that a court may consider an independent action to set aside a judgment for fraud on the court. Although there is no time limit for these actions, they may be maintained only for extrinsic fraud. Independence Lead Mines Co. v. Kingsbury, 175 F.2d 938, 985 (9th Cir. 1949). Wood’s first amended complaint, and all proposed amendments, contained two grounds for setting aside the judgment: (1) Appellees conspired to have McEwen appointed special master and McEwen’s conflict of interest in the outcome, because of his involvement in the Santa Barbara Chamber of Commerce, precluded Wood from fairly presenting his claims, and (2) McEwen filed a false and perjured affidavit regarding Wood’s conduct during discovery which resulted in the dismissal. Judge Kelleher dismissed the action because of Wood’s conduct both before and after McEwen’s appointment and for Wood’s failure to comply with the court’s orders. Wood does not attempt to justify his refusal to comply with the court’s orders nor does he deny that he refused to permit discovery. Even if we could disregard Judge Kelleher’s grounds for dismissing the action, Wood’s allegations do not provide a basis to vacate the prior judgment. His allegation of McEwen’s membership in the Chamber of Commerce, an organization that was not even a party to the action, does not support an allegation of a conflict of interest and does not indicate either extrinsic fraud or fraud on the court. See Keys v. Dunbar, 405 F.2d 955 (9th Cir.), cert. denied, 396 U.S. 880, 90 S.Ct. 158, 24 L.Ed.2d 138 (1969); England v. Doyle, 281 F.2d 304 (9th Cir. 1969). Extrinsic fraud is conduct which prevents a party from presenting his claim in court. Green v. Ancora-Citronelle Corp., 577 F.2d 1380, 1384 (9th Cir. 1978). At the hearing at which Judge Kelleher considered McEwen’s report, Wood fully participated in the proceedings. Wood’s allegation of perjury does not raise an issue of extrinsic fraud. At most it raises an issue of intrinsic fraud and does not" } ]

[ { "docid": "22955540", "title": "", "text": "dishonestly or fraudulently; on the contrary his loyalty to the court, as an officer thereof, demands integrity and honest dealing with the court. And when he departs from that standard in the conduct of a case he perpetrates fraud upon a court. Id. The author cites two Supreme Court decisions that illustrate the role of attorney actions in the fraud on the court analysis. Moore distinguishes between Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944), in which the Supreme Court, did find fraud, and U.S. v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93 (1878), in which the Court did not find fraud. While the actions taken in both cases were similar — false documents were put before the court — the attorney was implicated in Hazel-Atlas as one of the perpetrators, while the attorney in Throckmorton was not. 7 Moore’s Federal Practice at 60-358-59. See also Serzysko v. Chase Manhattan Bank, 461 F.2d 699 (2d Cir.1972), where the court of appeals as part of its finding of no fraud on the court, pointed out that none of the offending party’s attorneys were involved in the alleged fraud. 461 F.2d at 702 n. 1. When the party is the United States, acting through the Department of Justice, the distinction between client and attorney actions becomes meaningless. The Department acts only through its attorneys. Although there are cases holding that a “plan or scheme” must exist in order to find fraud on the court, we agree with Judge Wiseman that a scheme, based on a subjective intent to commit fraud, is not required in a case such as this. Reckless disregard for the truth is sufficient. B. The respondents complain that Demjanjuk seeks to hold them to the constitutional standard in criminal cases enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), even though all proceedings against Demjanjuk have been civil actions. The Supreme Court held in Brady that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the" }, { "docid": "23535970", "title": "", "text": "the pendency of the prior proceeding from deposing the two eyewitnesses to the bank robbery in order to impeach the officers’ testimony. Instead, however, Gleason voluntarily chose to settle the action. As we previously have made clear, the credibility and veracity of a witness at issue in an original proceeding cannot be later challenged by way of an independent action. See Serzysko, 461 F.2d at 702 & n. 2; see also Travelers Indemnity Co. v. Gore, 761 F.2d 1549, 1552 (11th Cir.1985). After-discovered evidence of alleged perjury by a witness is simply not sufficient for a finding of “fraud upon the court.” Hazel-Atlas, 322 U.S. at 245, 64 S.Ct. at 1001; Serzysko, 461 F.2d at 702. Similarly, allegations of nondisclosure during pretrial discovery do not constitute grounds for an independent action under Fed.R.Civ.P. 60(b). See H.K. Porter Co. v. Goodyear Tire & Rubber Co., 536 F.2d 1115, 1118 (6th Cir.1976). Absent the type of fraud which “subvert[s] the integrity of the court itself, or is ... perpetrated by officers of the court,” 7 Moore 11 60.33, at 360; see Serzysko, 461 F.2d at 702, the requisite interference with the judicial machinery cannot be established and an independent action for fraud on the court therefore will not lie. In short, neither perjury nor nondisclosure, by itself, amounts to anything more than fraud involving injury to a single litigant. Cf. Hazel-Atlas, 322 U.S. at 246, 64 S.Ct. at 1001; Great Coastal Express, Inc. v. International Brotherhood of Teamsters, 675 F.2d 1349, 1357 (4th Cir.1982) (“[pjerjury and fabricated evidence are evils that can and should be exposed at trial, and the legal system encourages and expects litigants to root them out as early as possible”), cert. denied, 459 U.S. 1128, 103 S.Ct. 764, 74 L.Ed.2d 978 (1983). Notwithstanding Judge Leval’s determination that plaintiff alleged only perjury and nondisclosure as the basis for his independent action for relief, Gleason nevertheless contends that the new evidence before the district court was indicative of a broad conspiracy and cover-up which transcended mere perjury and nondisclosure. Thus, plaintiff claims that the district court erred in finding the" }, { "docid": "565418", "title": "", "text": "for a Rule 60(b) action alleging attorney misconduct of the most serious nature does not satisfy Rule 11 standards. Cleveland also failed to conduct a reasonable legal investigation to determine if the complaint was “warranted by existing law.” Cleveland limited its inquiry to a brief reading of Rule 60, a portion of American Jurisprudence, a Federal Procedure Guide, and Hazel-Atlas Glass Co. v. Hartford-Empire Co., 332 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944). If Cleveland had conducted even a minimal investigation into Fourth Circuit precedent, it would have discovered Great Coastal Express v. International Brotherhood of Teamsters, 675 F.2d 1349 (4th Cir.1982). Although Great Coastal suggests that a conspiracy by a witness and an attorney to commit perjury will amount to a fraud on the court, the case specifically notes that other sanctions exist to punish penury and that “perjury or fabricated evidence are not grounds for relief as a fraud on the court.” 675 F.2d at 1357. Thus, even if Cleveland had evidence of perjury by Spine, it was still required to show that Demase participated. Because Cleveland had absolutely no evidence of involvement by Demase, a quick reading of Great Coastal would have revealed that Cleveland’s complaint had “absolutely no chance of success under the existing precedent.” Eastway Construction Corp. v. City of New York, 762 F.2d 243, 254 (2d Cir.1985). In sum, Rule 11 “explicitly and unambiguously imposes an affirmative duty on each attorney to conduct a reasonable inquiry into the validity of a pleading before it is signed.” Eastway, 762 F.2d at 253. The Rule does not seek to stifle the exuberant spirit of skilled advocacy or to require that a claim be proven before a complaint can be filed. The Rule attempts to discourage the needless filing of groundless lawsuits. To fulfill his duty, an attorney must investigate the facts, examine the law, and then decide whether the complaint is justified. Cleveland failed to discharge this duty; it conducted only a minimal factual inquiry and a cursory legal investigation. The district court properly imposed sanctions. In determining the specific amount of the sanctions," }, { "docid": "23590426", "title": "", "text": "Plaintiff asserts that Gore obtained final judgment in the original action through a preconceived scheme to use the judicial system to defraud the plaintiff. As is clear in the Advisory Committee Notes to the 1946 amendments to Rule 60(b), the term “independent action” in Rule 60(b) refers only to actions that “established doctrine” had held to be within the court’s power prior to enactment of the rules of procedures. The elements of such an action are (1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of defendant; and (5) the absence of any remedy at law. Bankers Mortgage Co. v. United States, 423 F.2d 73, 79 (5th Cir.) cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970) (quoting National Surety Co. v. State Bank, 120 F. 593, 599 (8th Cir.1903)). The court finds that the perjury by defendant Gore does not constitute fraud upon the court. Plaintiff’s complaint thus fails to meet the requirements of an independent action. Great Coastal Express v. Brotherhood of Teamsters, 675 F.2d 1349, 1356 (4th Cir.1982); Kermit Medical Products v. N & H Instruments, 616 F.2d 833, 837 (5th Cir.1980); Williams v. Bd. of Regents, 90 F.R.D. 140 (M.D.Ga.1981). These courts relied upon the following test in determining what constitutes fraud upon the court. “Fraud upon the court” should, we believe, embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication, and relief should be denied in the absence of such conduct. Fraud inter parties, without more, should not be fraud upon the court, but redress should be left to a motion under Rule 60(b)(3)" }, { "docid": "8879024", "title": "", "text": "which courts of equity have exerted their authority to ignore a judgment obtained by extrinsic fraud by prohibiting the fraudulent party from reaping the fruits of the fraudulent judgment or decree. Hewitt v. Hewitt (C.C.A.) 17 F.(2d) 716. Where the party who has committed the fraud has already reaped the benefit of the fraud by securing possession of property rightfully belonging to the other party, equity courts have decreed that the property should be held by the defrauded party in trust for the parties defrauded and has made appropriate orders to secure to the victim property of which he had been defrauded. Hewitt v. Hewitt, supra. These principles concerning extrinsic fraud, as applied by courts of equity, have no application to the adjudication of bankruptcy in the case at bar where the bankruptcy court had juris diction over the bankrupt by virtue of its petition in voluntary bankruptcy, and only would be relevant if at all in connection with the further proceedings in bankruptcy. From what we have said it would seem clear enough that the bankruptcy court in the case at bar had no jurisdiction to vacate the adjudication of bankruptcy and that the District Court has rightly so decided. We will give further attention, however, to appellants’ claim that the order of adjudication should be set aside because of extrinsic fraud upon the court and parties. Fraud involving matters or issues litigated, or which might have been litigated, in the main proceeding, or involving false or perjured testimony therein, is intrinsic. United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93; Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 43 S.Ct. 458, 67 L.Ed. 719. What then is the fraud upon which the appellants rely and which they claim is extrinsic? Concealment: Appellants claim that the relationship of the Wesco Corporation to the bankrupt, and the relationship of the Fox Film Corporation to the bankrupt, and that of the Chase National Bank of the City of New York, was concealed from the court. This concealment is claimed to be fraudulent and wrongful because the Wesco Corporation" }, { "docid": "22963202", "title": "", "text": "the court. Furthermore, the Rozier court explained at length that the requirements for a \"fraud on the court” action were more stringent than those for a Rule 60(b)(3) motion. Rozier, 573 F.2d at 1337-39; see also Great Coastal v. International Brotherhood of Teamsters, 675 F.2d 1349, 1356 (4th Cir.1982) (\"fraud on the court” concept \"should be construed very narrowly,” otherwise the concept could \"easily overwhelm the specific provision of 60(b)(3) and its time limitation and thereby subvert the balance of equities contained in the Rule”); Gleason v. Jandrucko, 860 F.2d 556, 558 (2d Cir.1988) (stating that \"fraud on the court” action is narrower in scope than Rule 60(b)(3)). Fierro does not, and could not, base his argument on Rule 60(b)(3). That provision includes a one-year statute of limitations: On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party ... The motion shall be made ... not more than one year after the judgment, order or proceeding was entered or taken.... Fierro presented his Rule 60(b) motion to the district court more than ten years after the district court’s judgment from which Fierro seeks relief. Aside from Rozier, Fierro’s reliance on Hazel-Atlas — without alluding to our subsequent case law interpreting that decision — is questionable; our court has interpreted Hazel-Atlas in the light of other Supreme Court and sister circuit precedent. See especially Browning v. Navarro, 826 F.2d 335, 342^15 (5th Cir.1987). In Browning, we thoroughly reviewed Supreme Court precedent in an effort to define \"judgment procured by fraud.” Fierro's briefs do not contain a whisper of Browning. . See also Browning, 826 F.2d at 343 (\"According to Justice Miller’s reasoning [in Throckmorton ], in order to collaterally attack the judgment, it must have been obtained by fraud, as distinguished from having been based on fraud.”). . See Browning, 826 F.2d at 344 n. 11 (noting that some commentators have criticized the" }, { "docid": "23060511", "title": "", "text": "not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication. 7 Moore, supra, ¶ 60.33, at 515 (footnote omitted); see Kupferman v. Consolidated Research & Mfg. Corp., 459 F.2d 1072, 1078 (2 Cir. 1972). In finding fraud upon the court where an attorney was involved in the perpetration of the fraud, the Supreme Court indicated, by way of contrast, that fraud upon the court does not exist where a judgment has simply been “obtained with the aid of a witness who, on the basis of after-discovered evidence, is believed possibly to have been guilty of perjury.’’ Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 245, 64 S.Ct. 997, 1001, 88 L.Ed. 1250 (1944). These appeals— both from the denial of the Rule 60(b) motion and from that portion of the new complaint charging fraud upon the court —present nothing more. At the trial of the 1965 complaint, Hardiman and Hughes testified that appellant misrepresented to them the purposes for which he sought the loans; appellant testified that he made no misrepresentations and that Hardiman and Hughes had him sign blank statement of purpose forms with respect to the loans. The credibility of the witnesses was directly in issue and the veracity of their differing accounts of the relevant facts was fully considered in the original action. See 290 F.Supp. at 83-84. Insofar as appellant merely alleges that he now has new evidence which contradicts the testimony of Hardiman and Hughes, this is insufficient for a finding of fraud upon the court. Additionally, to the extent that appellant has attempted to institute an independent action to set aside the original judgment, his papers present no basis for finding of fraud inter partes. Such an independent action has traditionally been sustainable only in cases of extrinsic, as opposed to intrinsic, fraud, see United States v. Throckmorton, 98 U.S. 61, 68, 25 L.Ed. 93 (1878), and perjury by trial witnesses is recognized to be of the latter variety, see 7 Moore, supra, ¶ 60.37 [1], at 615. Appellant’s new complaint alleges that he was approached" }, { "docid": "23535972", "title": "", "text": "alleged fraud to be intrinsic to the prior proceeding. Although we agree with plaintiff that relief from a judgment by way of an independent action need not be premised on a showing of extrinsic as opposed to intrinsic fraud, see Averbach v. Rival Mfg. Co., 809 F.2d 1016, 1022 (3d Cir.) (“ ‘extrinsic’ — ‘intrinsic’ distinction which is based on a statement in United States v. Throckmorton, 98 U.S. (8 Otto) 61 [23 L.Ed. 93] (1878), was overruled, if it was ever the law, by Marshall v. Holmes, 141 U.S. 589 [12 S.Ct. 62, 35 L.Ed. 870] (1891)”), cert. denied, — U.S. -, 107 S.Ct. 3187, 96 L.Ed.2d 675 (1987); see also Serzysko, 461 F.2d at 702 n. 2; 11 C. Wright & A. Miller, Federal Practice and Procedure § 2868, at 240-41 (1973) (distinction between extrinsic and intrinsic fraud is “most unfortunate, if true. [It] rests on clouded and confused authorities, its soundness as a matter of policy is very doubtful, and it is extremely difficult to apply. It ought not to persist as a limit on independent actions” under Fed.R.Civ.P. 60(b).), an aggrieved party seeking relief under the saving clause of Rule 60(b) still must be able to show that there was no “opportunity to have the ground now relied upon to set aside the judgment fully litigated in the original action.” Serzysko, 461 F.2d at 702 n. 2; see Marshall, 141 U.S. at 596, 12 S.Ct. at 64; M.W. Zack Metal Co. v. International Navigation Corp., 675 F.2d 525, 530 (2d Cir.), cert. denied, 459 U.S. 1037, 103 S.Ct. 449, 74 L.Ed.2d 604 (1982); 11 Wright & Miller § 2868, at 239. The district court explicitly found that plaintiff had ample opportunity in the prior proceeding to uncover the alleged fraud, and the record supports the court’s determination. Accordingly, plaintiff’s contention in this regard is without merit. CONCLUSION For all of the foregoing reasons, the district court’s order granting defendant’s motion to dismiss for failure to state a claim upon which relief can be granted is affirmed." }, { "docid": "23590430", "title": "", "text": "L.Ed. 93 (1878); see also Great Coastal Express, 675 F.2d at 1358 (4th Cir.1982); Wood v. McEwen, 644 F.2d 797 (9th Cir.1981). Under the Throckmorton doctrine, for fraud to lay a foundation for an independent action, it must be such that it was not in issue in the former action nor could it have been put in issue by the reasonable diligence of the opposing party. See Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 425, 43 S.Ct. 458, 465, 67 L.Ed. 719 (1923). Perjury by a party does not meet this standard because the opposing party is not prevented from fully presenting his case and raising the issue of penury in the original action. Perjury and fabricated evidence are evils that can and should be exposed at trial, and the legal system encourages and expects litigants to root them out as early as possible____ Fraud on the court is therefore limited to the more egregious forms of subversion of the legal process, ... those we cannot necessarily expect to be exposed to by the normal adversary process. Great Coastal Express, 675 F.2d at 1357. In addition, the plaintiff cannot use an independent action as a vehicle for the relitigation of issues. Courts have consistently held that a party is precluded by res judicata from reliti-gation in the independent equitable action issues that were open to litigation in the former action where he had a fair opportunity to make his claim or defense in that action. Bankers Mortgage, 423 F.2d at 79. Plaintiff’s argument that Gore obtained his judgment in the original trial by use of perjured testimony to support its motion for relief in this action is an attempt to relitigate the credibility of a witness, an issue that was necessarily decided in the original trial. See Addington v. Farmer’s Elevator Mutual Insurance, 650 F.2d 663, 668 (5th Cir.1981). The court will grant the defendants’ motions to dismiss the complaint. Accordingly, the defendants’ motions for reconsideration are GRANTED. Defendants’ motions to dismiss the complaint are GRANTED. SO ORDERED, this 10th day of October, 1984. /s/ Richard C." }, { "docid": "23590429", "title": "", "text": "Hartford defrauded the court of appeals by using the article as evidence in support of its case. The Supreme Court ordered that the decision obtained in the court of appeals be set aside. The court finds Hazel-Atlas distinguishable from the instant case in that here there is no allegation of attorney involvement in Gore’s perjury and no evidence to suggest that the normal, impartial operation of the court which heard the insurance contract case was interfered with in any manner by the fraud perpetrated by Gore. The court rejects the plaintiff’s contention that the fraud in this case presents a deliberate scheme to directly subvert the judicial process. The fraud in this case “primarily concerns the two parties involved and does not threaten the public injury that a fraudulently-obtained legal monopoly did in Hazel-Atlas.” Great Coastal Express v. Brotherhood of Teamsters, 675 F.2d 1349, 1356-57 (4th Cir.1982). Perjury is an intrinsic fraud which will not support relief from judgment through an independent action. See United States v. Throckmorton, 8 Otto 61, 98 U.S. 61, 25 L.Ed. 93 (1878); see also Great Coastal Express, 675 F.2d at 1358 (4th Cir.1982); Wood v. McEwen, 644 F.2d 797 (9th Cir.1981). Under the Throckmorton doctrine, for fraud to lay a foundation for an independent action, it must be such that it was not in issue in the former action nor could it have been put in issue by the reasonable diligence of the opposing party. See Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 425, 43 S.Ct. 458, 465, 67 L.Ed. 719 (1923). Perjury by a party does not meet this standard because the opposing party is not prevented from fully presenting his case and raising the issue of penury in the original action. Perjury and fabricated evidence are evils that can and should be exposed at trial, and the legal system encourages and expects litigants to root them out as early as possible____ Fraud on the court is therefore limited to the more egregious forms of subversion of the legal process, ... those we cannot necessarily expect to be exposed to" }, { "docid": "565411", "title": "", "text": "to present perjured testimony. The only evidence that Spine committed perjury, however, is the conflict between his trial testimony and Dun & Bradstreet’s version of the July 5th report; the only evidence of Demase’s involvement is that he was Azcon’s trial attorney. This meager evidence falls woefully short of proving a fraud on the court. More importantly, if a losing party could attack a verdict whenever two witnesses disagreed and an attorney was involved, no verdict would be final. The district court properly granted summary judgment for Azcon. As Rule 60(b) recognizes, district courts may entertain an independent action in equity to set aside a judgment for fraud on the court. Fraud on the court is a serious allegation, however, involving “corruption of the judicial process itself.” In re Whitney-Forbes, 770 F.2d 692, 698 (7th Cir.1985). A verdict will be vacated only in the “most egregious cases ... in which the integrity of the court and its ability to function impartially is directly impinged.” Great Coastal Express, Inc. v. International Brotherhood of Teamsters, 675 F.2d 1349, 1356 (4th Cir.1982). Although perjury by a witness will not suffice, the “involvement of an attorney, as an officer of the court, in a scheme to suborn perjury should certainly be considered fraud on the court.” Great Coastal Express, 675 F.2d at 1357; H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536 F.2d 1115, 1118-19 (6th Cir.1976). Thus, if Spine deliberately lied and Demase participated in the fraud, the earlier verdict for Azcon should be set aside. According to Cleveland, Spine must have committed perjury because his deposition is vague and Dun & Bradstreet has no record of a July 5th request. Cleveland, however, overestimates the ambiguity of the deposition. Although not a model of clarity, Spine’s deposition does state that he requested a verbal Dun & Bradstreet report when the Azcon employees inspected the demolition site, which was in late June or early July. The deposition also shows that Spine claimed that Azcon’s Chicago office reported that Haddad was listed as the president on the Dun & Bradstreet report. The deposition" }, { "docid": "565417", "title": "", "text": "investigation, Rule 11 provides that the district court “shall” impose sanctions. The district court found that Cleveland did not conduct a reasonable factual or legal investigation. We agree. Although Cleveland discovered a conflict between the Spine and Dun & Bradstreet versions, this discovery should have been only the beginning of the inquiry into whether Spine committed penury. Rather than continuing its investigation, however, Cleveland was apparently satisfied with a few interviews with a Dun & Bradstreet employee. A complaint of this nature has a potentially devastating impact upon professional reputations. Even if Cleveland had found evidence of perjury, it had an obligation to investigate whether attorney Demase was involved. Cleveland’s inquiry never produced any evidence that Demase participated in Spine’s alleged perjury. As the district court noted, “this part of [Cleveland’s] case has always been nothing more than speculative and conclusory.” Instead of conducting a reasonable factual investigation, Cleveland apparently chose to build its case on the unsupported assumption that Spine must have been lying and that Demase must have been participating. This speculative basis for a Rule 60(b) action alleging attorney misconduct of the most serious nature does not satisfy Rule 11 standards. Cleveland also failed to conduct a reasonable legal investigation to determine if the complaint was “warranted by existing law.” Cleveland limited its inquiry to a brief reading of Rule 60, a portion of American Jurisprudence, a Federal Procedure Guide, and Hazel-Atlas Glass Co. v. Hartford-Empire Co., 332 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944). If Cleveland had conducted even a minimal investigation into Fourth Circuit precedent, it would have discovered Great Coastal Express v. International Brotherhood of Teamsters, 675 F.2d 1349 (4th Cir.1982). Although Great Coastal suggests that a conspiracy by a witness and an attorney to commit perjury will amount to a fraud on the court, the case specifically notes that other sanctions exist to punish penury and that “perjury or fabricated evidence are not grounds for relief as a fraud on the court.” 675 F.2d at 1357. Thus, even if Cleveland had evidence of perjury by Spine, it was still required to" }, { "docid": "23535971", "title": "", "text": "60.33, at 360; see Serzysko, 461 F.2d at 702, the requisite interference with the judicial machinery cannot be established and an independent action for fraud on the court therefore will not lie. In short, neither perjury nor nondisclosure, by itself, amounts to anything more than fraud involving injury to a single litigant. Cf. Hazel-Atlas, 322 U.S. at 246, 64 S.Ct. at 1001; Great Coastal Express, Inc. v. International Brotherhood of Teamsters, 675 F.2d 1349, 1357 (4th Cir.1982) (“[pjerjury and fabricated evidence are evils that can and should be exposed at trial, and the legal system encourages and expects litigants to root them out as early as possible”), cert. denied, 459 U.S. 1128, 103 S.Ct. 764, 74 L.Ed.2d 978 (1983). Notwithstanding Judge Leval’s determination that plaintiff alleged only perjury and nondisclosure as the basis for his independent action for relief, Gleason nevertheless contends that the new evidence before the district court was indicative of a broad conspiracy and cover-up which transcended mere perjury and nondisclosure. Thus, plaintiff claims that the district court erred in finding the alleged fraud to be intrinsic to the prior proceeding. Although we agree with plaintiff that relief from a judgment by way of an independent action need not be premised on a showing of extrinsic as opposed to intrinsic fraud, see Averbach v. Rival Mfg. Co., 809 F.2d 1016, 1022 (3d Cir.) (“ ‘extrinsic’ — ‘intrinsic’ distinction which is based on a statement in United States v. Throckmorton, 98 U.S. (8 Otto) 61 [23 L.Ed. 93] (1878), was overruled, if it was ever the law, by Marshall v. Holmes, 141 U.S. 589 [12 S.Ct. 62, 35 L.Ed. 870] (1891)”), cert. denied, — U.S. -, 107 S.Ct. 3187, 96 L.Ed.2d 675 (1987); see also Serzysko, 461 F.2d at 702 n. 2; 11 C. Wright & A. Miller, Federal Practice and Procedure § 2868, at 240-41 (1973) (distinction between extrinsic and intrinsic fraud is “most unfortunate, if true. [It] rests on clouded and confused authorities, its soundness as a matter of policy is very doubtful, and it is extremely difficult to apply. It ought not to persist as" }, { "docid": "23590427", "title": "", "text": "State Bank, 120 F. 593, 599 (8th Cir.1903)). The court finds that the perjury by defendant Gore does not constitute fraud upon the court. Plaintiff’s complaint thus fails to meet the requirements of an independent action. Great Coastal Express v. Brotherhood of Teamsters, 675 F.2d 1349, 1356 (4th Cir.1982); Kermit Medical Products v. N & H Instruments, 616 F.2d 833, 837 (5th Cir.1980); Williams v. Bd. of Regents, 90 F.R.D. 140 (M.D.Ga.1981). These courts relied upon the following test in determining what constitutes fraud upon the court. “Fraud upon the court” should, we believe, embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication, and relief should be denied in the absence of such conduct. Fraud inter parties, without more, should not be fraud upon the court, but redress should be left to a motion under Rule 60(b)(3) or to an independent action. 7 Moore’s Federal Practice It 60.33. Given the absence of a rigid time limitation for bringing independent action, and the “deep-rooted federal policy of preserving the finality of judgments, fraud upon the court cannot necessarily be read to embrace any conduct of which the court disapproves.” Williams, 90 F.R.D. at 142. Plaintiff relies on the decision in Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (Í944), to' support its argument that it should be permitted to maintain an independent action for relief in the instant case. In Hazel-Atlas the Supreme Court granted relief upon its finding of a deliberately planned and executed scheme to defraud the Patent Office and the Circuit Court of Appeals. The court found that Hartford defrauded the Patent Office by helping its application for a patent through use of an article written and caused to be published by some of its attorneys and officials under the name of a supposedly disinterested expert. In the subsequent patent infringement action" }, { "docid": "22955539", "title": "", "text": "judgments; thus, only actions that actually subvert the judicial process can be the basis for upsetting otherwise settled decrees. Professor Moore’s definition is frequently cited: Fraud upon the court should ... embrace only that species of fraud which does or attempts to, subvert the integrity of the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication, and relief should be denied in the absence of such conduct. 7 Moore’s Federal Practice and Procedure ¶ 60.33. Cases dealing with fraud on the court often turn on whether the improper actions are those of parties alone, or if the attorneys in the case are involved. As an officer of the court, every attorney has a duty to be completely honest in conducting litigation. Professor Moore emphasizes this element of fraud in his treatise: [WJhile an attorney should represent his client with singular loyalty, that loyalty obviously does not demand that he act dishonestly or fraudulently; on the contrary his loyalty to the court, as an officer thereof, demands integrity and honest dealing with the court. And when he departs from that standard in the conduct of a case he perpetrates fraud upon a court. Id. The author cites two Supreme Court decisions that illustrate the role of attorney actions in the fraud on the court analysis. Moore distinguishes between Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944), in which the Supreme Court, did find fraud, and U.S. v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93 (1878), in which the Court did not find fraud. While the actions taken in both cases were similar — false documents were put before the court — the attorney was implicated in Hazel-Atlas as one of the perpetrators, while the attorney in Throckmorton was not. 7 Moore’s Federal Practice at 60-358-59. See also Serzysko v. Chase Manhattan Bank, 461 F.2d 699 (2d Cir.1972), where the court of appeals as part of its finding" }, { "docid": "22963201", "title": "", "text": "had issued. Thompson, 118 S.Ct. at 1497. . This new evidence includes affidavits submitted by various people as well as the state trial court’s new findings of fact (which are, of course, based on \"new” evidence — i.e., oral lestimony as well as affidavits — produced since this court affirmed the denial of Fierro’s prior petition). . Fraud on state courts cannot be the basis of habeas relief unless that fraud amounts to the denial of a federal right. Sawyers v. Collins, 986 F.2d 1493, 1497 (5th Cir.1993); citing Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). No such claim is made here. . Fierro relies heavily on two cases — Hazel-Atlas and Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir.1978) — to construct what he considers to be the elements of an action for \"fraud on the court.\" Direct reliance on these cases, however, is somewhat questionable. The court in Rozier analyzed a motion brought under Rule 60(b)(3), not an equitable action for fraud on the court. Furthermore, the Rozier court explained at length that the requirements for a \"fraud on the court” action were more stringent than those for a Rule 60(b)(3) motion. Rozier, 573 F.2d at 1337-39; see also Great Coastal v. International Brotherhood of Teamsters, 675 F.2d 1349, 1356 (4th Cir.1982) (\"fraud on the court” concept \"should be construed very narrowly,” otherwise the concept could \"easily overwhelm the specific provision of 60(b)(3) and its time limitation and thereby subvert the balance of equities contained in the Rule”); Gleason v. Jandrucko, 860 F.2d 556, 558 (2d Cir.1988) (stating that \"fraud on the court” action is narrower in scope than Rule 60(b)(3)). Fierro does not, and could not, base his argument on Rule 60(b)(3). That provision includes a one-year statute of limitations: On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse" }, { "docid": "6805711", "title": "", "text": "even in different territorial jurisdictions. “The doctrine is equally well settled that the court will not set aside a judgment because it was founded on a fraudulent instrument or perjured evidence, or for any matter which was actually presented and considered in the judgment assailed.- * * * There are no maxims of the law more firmly established, or of more value in the administration of justice, than the two which are designed to prevent repeated litigation between the same parties in regard to the same subject of controversy, namely, ‘Interest reipublieas, ut sit finis litium,’ and ‘Nemo debet bis vexari pro úna et eadam causa.’ ” United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93. We have not. overlooked the doctrine that courts of equity possess authority to set aside and annul judgments at law rendered between the same parties by courts of competent jurisdiction for fraud, but the fraud in such ease must he extrinsic or collateral. For example: “Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him, away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side.” United States v. Throckmorton, supra. False and perjured testimony introduced by the prevailing party relative to the issue on trial does not afford ground for such relief in equity, for “in any ease, to justify setting aside a decree for fraud, whether extrinsic or intrinsic, it must appear that the fraud charged really prevented the party complaining from making a full and fair defense.” Chief Justice Taft in Toledo Scale Co. v. Computing Scale Co., 261 U. S. 421, 43 S. Ct. 464 (67 L. Ed. 719). “Mere false testimony, or forged documents, are not enough if" }, { "docid": "23590428", "title": "", "text": "or to an independent action. 7 Moore’s Federal Practice It 60.33. Given the absence of a rigid time limitation for bringing independent action, and the “deep-rooted federal policy of preserving the finality of judgments, fraud upon the court cannot necessarily be read to embrace any conduct of which the court disapproves.” Williams, 90 F.R.D. at 142. Plaintiff relies on the decision in Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (Í944), to' support its argument that it should be permitted to maintain an independent action for relief in the instant case. In Hazel-Atlas the Supreme Court granted relief upon its finding of a deliberately planned and executed scheme to defraud the Patent Office and the Circuit Court of Appeals. The court found that Hartford defrauded the Patent Office by helping its application for a patent through use of an article written and caused to be published by some of its attorneys and officials under the name of a supposedly disinterested expert. In the subsequent patent infringement action Hartford defrauded the court of appeals by using the article as evidence in support of its case. The Supreme Court ordered that the decision obtained in the court of appeals be set aside. The court finds Hazel-Atlas distinguishable from the instant case in that here there is no allegation of attorney involvement in Gore’s perjury and no evidence to suggest that the normal, impartial operation of the court which heard the insurance contract case was interfered with in any manner by the fraud perpetrated by Gore. The court rejects the plaintiff’s contention that the fraud in this case presents a deliberate scheme to directly subvert the judicial process. The fraud in this case “primarily concerns the two parties involved and does not threaten the public injury that a fraudulently-obtained legal monopoly did in Hazel-Atlas.” Great Coastal Express v. Brotherhood of Teamsters, 675 F.2d 1349, 1356-57 (4th Cir.1982). Perjury is an intrinsic fraud which will not support relief from judgment through an independent action. See United States v. Throckmorton, 8 Otto 61, 98 U.S. 61, 25" }, { "docid": "3655308", "title": "", "text": "however, deserves some discussion. OSM claims Martin deliberately concealed the Colfax Branch mining that occurred a few months prior to the Trammel Branch mining that is the subject of the two NO Vs. Martin conceded at the hearing on the preliminary injunction that he misstated his mining activities at the 1981 hearing. However, OSM presents no evidence to support deliberate concealment or makes no argument that its investigation of Martin’s activities was somehow impeded because of his statement. Having witnessed Martin’s testimony and his explanation for the misstatement, the court finds him to be a credible witness, his explanation truthful, and his testimony before the AU not fraudulent in the absence of any evidence from OSM to the contrary. This issue merits no further discussion as OSM has failed to meet an essential element of proof. See Fed.R.Civ.P. 60(b); RESTATEMENT (SECOND) OF JUDGMENTS § 70 and Comment (d) (Party must demonstrate a substantial case to be proven by clear and convincing evidence that concealment occurred to obtain relief from fraud). However, even if Martin had committed perjury, the rule in the Fourth Circuit is that perjury is not grounds for relief .under the “fraud on the court” rubric in an independent action to set aside a judgment of another court. Great Coastal Express, Inc. v. International Brotherhood of Teamsters, 675 F.2d 1349, 1356-57 (4th Cir.1982), cert. denied, 459 U.S. 1128, 103 S.Ct. 764, 74 L.Ed.2d 978 (1983). Perjury is something that should be exposed at trial. If not, the legal system has other sanctions to enforce respect for the courts. Id. Accordingly, the court enjoins the defendants from prosecuting the disputed NOV and directs the clerk to send certified copies of this opinion to counsel of record. ORDER In accordance with a Memorandum Opinion entered this day, the Court: (1) ENJOINS Donald Hodel, Secretary of the U.S. Dept. of Interior, and the U.S. Department of Interior, from prosecuting W.D. Martin, d/b/a Martin Coal Co. for any violation of the Surface Mining Control and Reclamation Act, 30 U.S.C.A. § 1201-1328 (West 1986 & Supp.1988) regarding his operation of the Trammel Branch" }, { "docid": "11137544", "title": "", "text": "determined in an action between the same parties or their privies In Hustings Court and are res judicata. To this the appellants reply that the judgment of the Hustings Court has been vacated (which is inconsistent with their former contention) or that it will be vacated or held for naught by proof of fraud in the District Court (which is impossible under the law relied on by appellee.) The contention of appellee on this last point is that a judgment can be set aside for fraud only where the court was prevented from considering the real subject matter of the suit, or where a party was prevented from presenting all of his case. The frauds which justify the annulling or avoidance of a judgment in an independent proceeding between the same parties or their privies are those which are extrinsic or collateral to the matter tried, and not frauds, such as perjured evidence, which were actually presented and considered. Appellee relies on United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93 and Toledo Scale Company v. Computing Scale Company, 261 U.S. 399, 43 S.Ct. 458, 67 L.Ed. 719, which are controlling in the case. But it is not necessary to consider issues and requirements of evidence in the action in District Court. The action in the Hustings Court was a complete bar to the action in the District Court. It is apparent that plaintiffs could not recover punitive damages if they could not maintain the action for compensatory damages. Punitive damages can be allowed only where compensatory damages have been awarded. Zedd v. Jenkins, 194 Va. 704, 74 S.E.2d 791. Hurried settlements of cases such as this, without advice of counsel, are not to be encouraged, as the Hustings Court recognized in its order for vacation of judgment. The appellants should have exhausted their remedies in the state courts, Hustings and appellate. United States District Courts have no supervisory or appellate jurisdiction over cases in state courts. Certain cases are removable by specified procedure, but otherwise the jurisdiction of state courts is exclusive — as in this case. Since" } ]

[ { "docid": "10743995", "title": "", "text": "receive “any other or further compensation for his services” than that expressly authorized by the Act. 11 U.S.C. § 112. The 1938 amendment, however, changed the provision to permit receipt of compensation for services not required by the Act by adding the words “as required by this Act” to the quoted provision. See 4 Collier, Bankruptcy § 72.02 (14th ed.). In In re Ira Haupt & Co., 361 F.2d 164 (2d Cir. 1966), the Second Circuit held that a court could authorize a trustee to appoint his own law firm as counsel in administering a bankrupt estate that was not substantial. The court reasoned that since rendition of legal services by a receiver or trustee is not required by the Act, Section 112 would seem to permit the officer to receive compensation for serving as his own lawyer. In Haupt the amount of compensation was not in question. But from the text of the Haupt opinion we see no room for doubt that that court would approve a reasonable fee for the receiver’s or trustee’s services as attorney. And we see no reason why, in the relatively small estate before us, receiver-trustee Hey-man should not be reasonably compensated for the legal services rendered, since he was authorized to perform these services. The SEC recommends the practice of appointing, and compensating, the same person as receiver and attorney, for economy reasons. See Haupt, supra, at 169. And the practice is encouraged by the Administrative Office of United States Courts. Therefore, in so far as the district court’s opinion may be read as finding Heyman’s multiple service per se improper, we disagree. The district court found indications in the record before it that “many functions attributed to legal services [by Heyman] required no expertise;” and that “only in rare instances * * * when there is present such a confusion of functions” could a higher rate than $25 per hour be justified. The district court opinion does not specify the “many functions” which should not have been attributed to legal services. We have examined Schedules (F) and (G) which list the dates" } ]

[ { "docid": "22333865", "title": "", "text": "the Trustee. Normally, the responsibility of liquidating the assets of a bankrupt estate rests solely with the Trustee, as does the duty to submit periodic inventories and accounts. 11 U.S.C. § 75. In some circumstances, however, the assistance of counsel may be required by a Trustee to arrange for the sale of assets and to negotiate with prospective purchasers as to the terms and legal implications thereof in order to preserve the estate and obtain the highest possible bid for the assets. Thus, in a case involving facts markedly similar to the case at bar, the Second Circuit Court of Appeals denied compensation for time spent by counsel in locating a buyer for real estate but otherwise affirmed an award of fees for the hours devoted to “preparing the sale of [the] real estate,” where legal expertise was required. See In re Mabson Lumber Co., 394 F.2d 23 (2d Cir. 1968). The preparation of inventories and accounts, like the liquidation of assets, may also involve complex legal matters requiring the advice of an attorney. Since appellant failed to introduce any evidence that the advice of an attorney was unnecessary to negotiate with interested bidders and purchasers of the real estate and to assist in the preparation of required reports, we believe that the Bankruptcy Judge was justified in finding that these activities constituted compensable legal services. The judgment of the district court will be vacated and the case remanded for further proceedings consistent with this opinion. . Appellant also contends that certain services rendered by counsel were not necessary. By this contention we understand appellant to be arguing that even as to services which were legal in nature, compensation should be denied where the Receiver or Trustee could have adequately performed the same duties. The determination of whether concededly legal services are “necessary” legal services is generally a factual one, which may be overturned only upon a showing that it is clearly erroneous. On the basis of the record before us, we are unable to conclude that the Bankruptcy Judge’s implicit determination of this issue was clearly erroneous. . In" }, { "docid": "12415072", "title": "", "text": "CARL L. BUCKI, Bankruptcy Judge. During the lengthy administration of this difficult case, the Chapter 7 trustee rendered legal services for the benefit of the estate. Upon completing these tasks, however, the case trustee discovered that he had- neglected to secure his own appointment as general counsel. Accordingly, after submitting his final report and application for allowance of legal fees, the trustee moved for his retroactive appointment as attorney. Objecting to this motion and to the allowance of legal compensation, the United States Trustee contends that the case trustee is unable to justify his failure to arrange the timely appointment of counsel. Section 330 of the Bankruptcy Code authorizes this court to award reasonable compensation to “a professional person employed under section 327.” Any such employment, however, requires the approval of the Bankruptcy Court. Subdivision (a) of section 327 provides generally that “the trustee, with the court’s approval, may employ one or more attorneys ... that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee’s duties under this title.” Further, subdivision (d) provides that “[t]he court may authorize the trustee to act as attorney or accountant for the estate if such authorization is in the best interest of the estate.” The Second Circuit has traditionally upheld a strict standard requiring prior appointment as a condition for professional compensation. See, for example, In re Eureka Upholstering Co., 48 F.2d 95 (1931) and In re Progress Lektro Shave Corp., 117 F.2d 602 (1941). This rule is not absolute, however. In his decision in In re Piecuil, 145 B.R. 777 (Bankr.W.D.N.Y.1992), the Honorable Michael J. Kaplan carefully examined the relevant precedents of this Circuit. Having nothing to add to that analysis, I fully adopt my colleague’s reasoning and conclusion. As stated by Judge Kaplan, “the applicable case law permits this Court, as a court of equity, latitude to grant relief where the failure to file a timely application has been explained, and the explanation has been found reasonable.” Id. at 783. The reasonableness of an" }, { "docid": "13797185", "title": "", "text": "resolved by the parties. Maguire obtained an appointment to the CMIT Board, and Licht obtained payment for his expenses and his notes were purchased by Phelps. The plan as modified was confirmed on September 8, 1983 and assets totalling approximately $25,000,000 in assets were transferred to the reorganized company. In the fall of 1983, the Trustee proposed to compromise the litigation against the officers, having negotiated an offer of $2,000,000. The offer was noticed, and after hearing on the reorganized CMIT’s objection, the Court authorized the compromise. The settlement also disposed of alleged administrative claims by the directors and officers against the estate for reimbursement of their costs and expenses in defending the Trustee’s litigation. On November 29, 1983, the Court heard the applications of counsel and other functionaries for final fees and objections of CMIT and took the applications under advisement. FEES IN CHAPTER X PROCEEDINGS: In a Chapter X proceeding, the Court has authority to allow reasonable compensation for necessary services and expenses to the referee, special master, trustee, his attorneys, debtor’s attorney, and persons assisting functionaries. The Bankruptcy Act of 1898, Section 242, 11 U.S.C. Section 642 (repealed 1978). Court-appointed officers are entitled to reasonable compensation whether or not their services produce any benefit to the estate. See In Re Food Town, Inc., 208 F.Supp. 139, 145 (D.Md.1962). Securities holders, creditors, stockholders, indenture trustees, and their representatives may also be allowed compensation for services, if such services bene-fitted the estate. The Bankruptcy Act, Sections 242, 243, 11 U.S.C. Sections 642, 643 (repealed 1978); Bankruptcy Rule (10-215)(c)(l)(B) (repealed 1978); J. Moore, 6A Collier on Bankruptcy, Par. 13.01, at 523 (14th ed. Supp.1982). Participation in a Chapter X proceeding does not automatically entitle a party to compensation. Services performed in self-interest, such as those rendered to maximize one’s claim, are not compensable where no resulting benefit to the estate can be found. See In Re Interstate Stores, Inc. 1 B.R. 755 (Bkrtcy.S.D.N.Y.1980). An applicant has the burden of demonstrating entitlement to compensation. J. Moore, 6A Collier on Bankruptcy, Par. 13.01 at 531-32, (14th ed. Supp.1982). Many Chapter X decisions" }, { "docid": "22840077", "title": "", "text": "separate sets of attorneys for the debtor and the debtor-in-possession. Appellants cite several cases wherein courts reduced fees where it was found that separate sets of attorneys performing overlapping services burdened the estate. See, e. g., Official Creditors’ Committee of Fox Market, Inc. v. Ely, 337 F.2d 461 (9th Cir. 1964) ; In re Solar Mfg. Corp., 215 F.2d 555 (3rd Cir. 1954). With respect to the employment of several attorneys which results in duplication of services, 3A Collier on Bank ruptcy ¶ 62.12, at 1506 (14th ed. 1971) states: “Only one reasonable attorney’s fee is provided for, irrespective of the number of attorneys employed. There is no such statutory protection against duplication or multiplication of legal services rendered to the trustee or re-céiver. In this respect, however, the courts have reached results in harmony with the statutory principle. They have not only denounced duplication of services generally, applying as a sanction the denial of compensation, but they decided to allow in much the same way one attorney’s fee only, wherever several attorneys rendered the estate services that could have been rendered by a single attorney.” (footnote omitted) Counsel for the debtor and counsel for the debtor-in-possession cannot be compensated for rendering the same service. In the item-by-item review on remand of the applications submitted by both sets of attorneys, fees to debtor’s counsel should be limited to those legal services which they provided and which are within the scope of their duties. Similarly, the District Court should allow fees to counsel for the debt- or-in-possession for those legal services which they provided and which are within the scope of their duties. The appellants’ final objection to the compensation award to the attorneys for the debtor is that the Bankruptcy Judge abused his discretion in allowing $162,500 in fees since this amount was clearly excessive and inconsistent with the economical spirit of the Bankruptcy Act. In support of this objection, the appellants assert that counsel for the debtor requested compensation at an hourly rate of about $71 (2,517 hours for a requested $180,000). Further, these rates are alleged to be" }, { "docid": "10318050", "title": "", "text": "of this estate was not a reasonable and necessary expense to this bankruptcy estate. 9. In Omaha, Nebraska, the minimum fee schedule of the Douglas County Bar Association provided for a minimum hourly rate of $15.00 per hour from approximately January 1, 1958, to approximately November 30, 1958, and for a minimum hourly rate of $18.00 per hour at all times since November 30,1958. 10. A fair and reasonable fee for the Attorney for the Trustee, under all the circumstances of this case is $18,500. The reasonable and necessary expense to this estate for the services of the Attorney for the Trustee is $18,500. CONCLUSIONS OF LAW Fees for the Trustee’s attorney are allowable as an expense of administration under Section 62 of the Bankruptcy Act. (11 U.S.C.A. § 102). The quantum of such fees is left by the Bankruptcy Act to the sound discretion of the Court. Where the proceeding has been referred, the quantum is for the sound discretion of the Referee, and this is so, even though as in this instance, the Referee was not in office during all of the time in which the services of the Attorney were rendered. As was held by the Court in In re Valentine, 139 F.Supp. 576, 577 (D.C.Md.1956): “As a rule discretion in the fixing of fees will be exercised primarily by the referee, subject, however, to review and reconsideration by the district judge. The referee’s discretion and judgment, if free from error of law and sufficiently supported by the evidence, is entitled to great weight, even though he was not in office when the services were rendered. Collier on Bankruptcy, 14th ed., sec. 62.12, pages 1481-1483.” The reasons why such discretion is lodged in the Referee were stated by Judge Sanborn, then a District Judge, in In re American Range & Foundry Co., 41 F.2d 845, 847-848 (D.C.Minn.1926): “ * * * The business of fixing attorneys’ fees in bankruptcy matters is one peculiarly for the referee. If this court should make it a practice to pass upon the question of the reasonableness of the allowances made by" }, { "docid": "22898204", "title": "", "text": "Court denied compensation to counsel who produced $800,000 by doing work of the Trustee because he was not authorized to do such work. The Trustee’s duties are spelled out in the Code, 11 U.S.C. § 1106, and he is expected to perform those duties himself. Attorneys are paid only for professional services and must not seek compensation for performing the Trustee’s work or other non-legal duties, 11 U.S.C. § 328(c). In re Mabson Lumber Co., 394 F.2d 23 (2nd Cir. 1968). Likewise, while out of pocket expenses that are necessary and reasonable are reimbursable, overhead, including such items as rent, heat, light, secretaries and probably local transportation is not. See, e. g., Cle-Ware Industries, Inc. v. Sokolsky (In re Cle-Ware Industries, Inc.), 493 F.2d 863 (6th Cir. 1974), certiorari denied 419 U.S. 829, 95 S.Ct. 50, 42 L.Ed.2d 53; In re Mabson Lumber Co., 394 F.2d 23 (2d Cir. 1968); In re Interstate Stores, Inc., 437 F.Supp. 14 (S.D.N.Y.1977). Appraisers, auctioneers, accountants, and others who have been duly appointed must file appropriate applications for compensation outlining their services within the context of their appointments. Rules 219, 606 and 11 U.S.C. § 328. Compensation cannot be shared except with members of one’s firm and as provided in Rule 219(d), 11 U.S.C. § 504. Most important and controlling all other considerations, even prior Court approval of specific terms of compensation, is the duty of the Court to determine that all fees and allowances are reasonable, 11 U.S.C. § 328(a); Carter v. Woods, 433 F.Supp. 291, 3 BCD 503 (W.D.Mo.1977). Section 330 of the Code (11 U.S.C. § 330) allows reasonable compensation for actual, necessary services rendered by Trustees, attorneys and other professionals and paraprofessionals, based on the time, nature, value of the services, and the cost of comparable services in cases outside of Title 11. While the Court recognizes that the liberalization of the “conservation of the estate” and the “economy of administration” limit on fee requests under the old Act has now been done away with under 11 U.S.C. § 330 and the legislative reports interpreting the same, see H.R.Rep.No.595, 1st" }, { "docid": "22333860", "title": "", "text": "objection to claims, appellant offered no evidence in opposition to the claim for attorneys’ fees, and the Bankruptcy Judge awarded compensation in the full amount requested by counsel, finding that they had spent “. . .a total of 208 hours in legal services for the receiver and a total of 381 hours in such services for the trustee. These figures were supported by ample documentation by Mr. Cohen and were not controverted during the hearing, nor did they include, I am convinced, the multitudinous and time consuming activities required in a case such as this which perhaps fall into the twilight zone between ‘legal’ and ministerial services of a lawyer.” In reviewing the Bankruptcy Judge’s decision on this issue, we must first consider the applicable principles governing the award of fees. Bankruptcy Rule 219(c)(3) provides that “[c]ompensation may be allowed an attorney or an accountant only for professional services.” The rule which has evolved from the cases applying this provision and its predecessor, General Order 42, is that an attorney is only entitled to receive compensation for the performance of professional “legal” services; non-legal services are not compensable. See, Cle-Ware Industries, Inc. v. Sokolsky, 493 F.2d 863, 874 (6th Cir. 1974); In re Mabson Lumber Co., 394 F.2d 23, 24 (2d Cir. 1968); In re Hardwick & Magee, 355 F.Supp. 58, 71-74 (E.D.Pa.1973). A second fundamental principle governing the allowance of counsel fees is that an attorney is not entitled to compensation for the assumption of the duties of the Receiver or Trustee. In re Union Dredging Co., 225 F. 188 (D.Del. 1915). The rationale underlying this rule is twofold: first, the estate must not be depleted through a possible duplication of charges for the same service; and second, the assumption of the Receiver’s or Trustee’s duties by counsel would be in derogation of the statutory scheme. Applying these guidelines, Collier suggests that the estate should be chargeable with a reasonable allowance for attorneys’ fees: “wherever the officer (trustee or receiver) is by statute either directed or in his sound discretion permitted to act, and where the compliance with his" }, { "docid": "6444506", "title": "", "text": "at this Court’s invitation, a reduction in the surcharge for lost interest is appropriate. Trustee’s efforts brought a large estate into existence for the benefit of creditors. His omission should not wholly deprive him of compensation for that valuable service. Of the $80,251 in interest lost to this estate by reason of Trustee’s omissions, only one-third or $26,750 will be surcharged against him by reducing his fee in that amount. II. DUTY OF TRUSTEE’S ATTORNEY TO ADVISE TRUSTEE REGARDING INVESTMENT OF ESTATE’S FUNDS All parties seeking compensation from a bankruptcy estate may be held to fiduciary standards. Finn v. Childs Co., 181 F.2d 431, 441 (2d Cir.1950). Those performing duties in the administration of a bankrupt estate are not acting as private individuals, but as officers of the court. York International Building, Inc. v. Chaney (Matter of York International Building, Inc.), 527 F.2d 1061, 1068 (9th Cir.1975). As such, they are expected to render loyal and disinterested service in the interest of those for whom they purport to act. Id. at 1069. Among the fiduciaries of a bankruptcy estate are the various attorneys who may be compensated from the estate. E.g., In re Coastal Equities, Inc., 39 B.R. 304, 309 (Bankr.S.D.Cal.1984) (attorney for debtor-in-possession); Pension Benefit Guaranty Corporation v. Pincus, Verlin, Hahn, Reich & Goldstein Professional Corp., 42 B.R. 960, 963 (E.D.Pa.1984) (attorney for creditors’ committee). Similarly, the fiduciary duties of counsel for a bankruptcy trustee have been held to be “equivalent” to those of the trustee. In re Imperial “400” National, Inc., 456 F.2d 926, 929 (3d Cir.1972). This does not mean that counsel for a trustee is to undertake the administrative responsibilities of the trustee. An attorney may only be compensated as an attorney for services requiring legal expertise. In re Mabson Lumber Co., 394 F.2d 23, 24 (2d Cir.1968); Matter of Sumthin’ Special, Inc., 2 B.R. 743, 749 (N.D.Ill.1980). Where counsel does not so limit his services, this Court would accordingly deny him professional compensation. In re Wildman, 72 B.R. 700, 706 (Bankr.N. D.Ill.1987). Thus, while both a trustee and his attorney are fiduciaries, they do not" }, { "docid": "22333861", "title": "", "text": "compensation for the performance of professional “legal” services; non-legal services are not compensable. See, Cle-Ware Industries, Inc. v. Sokolsky, 493 F.2d 863, 874 (6th Cir. 1974); In re Mabson Lumber Co., 394 F.2d 23, 24 (2d Cir. 1968); In re Hardwick & Magee, 355 F.Supp. 58, 71-74 (E.D.Pa.1973). A second fundamental principle governing the allowance of counsel fees is that an attorney is not entitled to compensation for the assumption of the duties of the Receiver or Trustee. In re Union Dredging Co., 225 F. 188 (D.Del. 1915). The rationale underlying this rule is twofold: first, the estate must not be depleted through a possible duplication of charges for the same service; and second, the assumption of the Receiver’s or Trustee’s duties by counsel would be in derogation of the statutory scheme. Applying these guidelines, Collier suggests that the estate should be chargeable with a reasonable allowance for attorneys’ fees: “wherever the officer (trustee or receiver) is by statute either directed or in his sound discretion permitted to act, and where the compliance with his duties or the exercise of his privileges require advice or assistance . . [footnotes omitted] 3A Collier on Bankruptcy, f 62.12[3] at 1475. The line between legal and non-legal services and between necessary legal services and ministerial duties of the Trustee, requiring only sound business judgment, is not easy to draw. Consequently, substantial latitude must be accorded the Bankruptcy Judge in the drawing process because he is best able to observe and evaluate counsel’s performance. To assist the judge in this process, counsel’s petition and supporting affidavit should describe with reasonable specificity the services for which compensation is claimed as well as the hours spent thereon. If such services could colorably constitute the type of services one would reasonably expect an attorney to perform under the circumstances, and are otherwise compensable, we think the Bankruptcy Judge is entitled to conclude therefrom that the petitioner has made out a prima facie showing that the services were compensable legal services, in the absence of an evidentiary showing to the contrary. Of course, the Bankruptcy Judge is free" }, { "docid": "7134574", "title": "", "text": "to doubt that the referee took these factors into account in determining the allowance for the services that were properly compensable. Although a somewhat higher allowance might have been warranted, courts of appeals are properly “reluctant,” as we stated in In re Paramount Merrick, Inc., supra, “to overturn the determination” of the referee and the district judge “unless it can be shown that the allowance was arbitrary and unreasonable.” The allowance amounts to 6.5% of the estate, only .6% less than the 1966 national average, see Administrative Office of the United States Courts, Division of Bankruptcy Administration, Tabulation of Costs of Administration 1966. While this would not be determinative if unusual services were involved, see Jacobowitz v. Double Seven Corp., 378 F.2d 405, 407 (9 Cir. 1967) (majority opinion), it provides some assurance that there was no unfairness in a case like this where the services required, while not insubstantial, were in no way extraordinary. Judgment affirmed. . The accounts he collected without litigation yielded about $500; those whose collection required litigation apparently yielded even less. . The Report of the Proceedings of the Judicial Conference of the United States held on March 30-31, 1967 noted at p. 34 that the Committee on Bankruptcy Administration “recommended that General Orders 42 and 44 be closely observed and no attorney’s fee be allowed without an appropriate and detailed fee application which should include professional duties only and should never be based on du-' ties properly performed by a trustee, receiver or other non-professional officer.” . Since § 72 of the Act as amended in 1938 limits the trustee’s compensation only for services required of him, see In re Ira Haupt & Co., 361 F.2d 164, 166 (2 Cir. 1966), some districts have sought to produce somewhat larger individual compensation without burdening the estate, and also to avoid line-drawing problems, by appointing trustees who are also lawyers as attorneys pro se upon proper petition under General Order 44. See Proceedings of Third Seminar for Referees in Bankruptcy 13 (1966); 3 Collier on Bankruptcy § 62.12; 4A id. § 72.01. This procedure would seem" }, { "docid": "22840076", "title": "", "text": "is to be determined on remand. We observe, however, that all of the five enumerated above, even if classified as professional services, appear to involve services in the administration of the bankrupt estate. As such, they are not compensable to counsel for the debtor. On remand, the District Court should review each of the items for which these attorneys request compensation to determine whether (1) they constitute professional services, and (2) if so, which counsel should be compensated for such services as falling within the scope of their respective duties. The compensation of attorneys for the debtor should be limited to legal services which it is the duty of the attorneys for the debtor to provide. In no event should compensation be allowed to any attorney for services other than professional services. The appellants’ third objection to the compensation award to the attorneys for the debtor is that the award represents compensation for duplicated services. The appellants contend that the total award was bound to skyrocket once the Bankruptcy Court permitted allowance of compensation to separate sets of attorneys for the debtor and the debtor-in-possession. Appellants cite several cases wherein courts reduced fees where it was found that separate sets of attorneys performing overlapping services burdened the estate. See, e. g., Official Creditors’ Committee of Fox Market, Inc. v. Ely, 337 F.2d 461 (9th Cir. 1964) ; In re Solar Mfg. Corp., 215 F.2d 555 (3rd Cir. 1954). With respect to the employment of several attorneys which results in duplication of services, 3A Collier on Bank ruptcy ¶ 62.12, at 1506 (14th ed. 1971) states: “Only one reasonable attorney’s fee is provided for, irrespective of the number of attorneys employed. There is no such statutory protection against duplication or multiplication of legal services rendered to the trustee or re-céiver. In this respect, however, the courts have reached results in harmony with the statutory principle. They have not only denounced duplication of services generally, applying as a sanction the denial of compensation, but they decided to allow in much the same way one attorney’s fee only, wherever several attorneys rendered the" }, { "docid": "2160072", "title": "", "text": "DECISION MARVIN A. HOLLAND, Bankruptcy Judge: The trustee has collected total receipts of $22,562.09 which appear to be the proceeds generated from a sale of the debtor’s assets, accounts receivable, turnover of funds from the debtor’s bank account, and interest earned by the trustee thereon. He seeks the maximum statutory commission of $831.24 which is hereby allowed pursuant to 11 U.S.C. § 326(a). The trustee’s attorney, retained pursuant to an Order dated August 26, 1982, also seeks compensation in the nature of professional fees. The attorney’s application documents some 44.65 hours spent on this matter. Unfortunately, the application is almost completely devoid of information which would warrant the award of any fee. DISCUSSION In passing upon attorneys’ applications for allowances, the Bankruptcy Court must answer three questions: 1. Are the services which are the subject of the application properly compensa-ble as legal services? 2. If so, were they actual and necessary? 3. If so, how will they be valued? I. PROPERLY COMPENSABLE LEGAL SERVICES. An attorney is never entitled to professional compensation for performing duties which the statute imposes upon the trustee. See e.g. In Re Mabson Lumber Co., Inc., 394 F.2d 23, 24 (2d Cir.1968); In Re Harman Supermarket, Inc., 44 B.R. 918, 920 (Bkrtcy.W.D.Vir.1984); In Re Auto Train Corp., 15 B.R. 160, 161 (Bkrtcy.D.C.1981). The function of an attorney for the trustee is to render to the estate those services which cannot and should not properly be performed by one who does not-have a license to practice law. See In Re Meade Land & Development Co., Inc., 527 F.2d 280, 284-85 (3d Cir.1975). See also House Report No. 95-595, 95th Cong., 1st Sess. 328-29 (1977); See Senate Report No. 95-989, 95th Cong., 2d Sess. 39 (1978), U.S.Code Cong. & Admin. News 1978, 5787. Although many trustees are attorneys at law admitted to practice in the jurisdiction in which they are residing, the allowance of statutory commissions for a trustee does not contemplate the trustee’s rendering legal services. The services that a trustee performs for an estate without the aid of counsel are compensable under Section 326 of the" }, { "docid": "2160073", "title": "", "text": "which the statute imposes upon the trustee. See e.g. In Re Mabson Lumber Co., Inc., 394 F.2d 23, 24 (2d Cir.1968); In Re Harman Supermarket, Inc., 44 B.R. 918, 920 (Bkrtcy.W.D.Vir.1984); In Re Auto Train Corp., 15 B.R. 160, 161 (Bkrtcy.D.C.1981). The function of an attorney for the trustee is to render to the estate those services which cannot and should not properly be performed by one who does not-have a license to practice law. See In Re Meade Land & Development Co., Inc., 527 F.2d 280, 284-85 (3d Cir.1975). See also House Report No. 95-595, 95th Cong., 1st Sess. 328-29 (1977); See Senate Report No. 95-989, 95th Cong., 2d Sess. 39 (1978), U.S.Code Cong. & Admin. News 1978, 5787. Although many trustees are attorneys at law admitted to practice in the jurisdiction in which they are residing, the allowance of statutory commissions for a trustee does not contemplate the trustee’s rendering legal services. The services that a trustee performs for an estate without the aid of counsel are compensable under Section 326 of the Code, while legal services rendered either by the trustee or his retained counsel are compensable under Section 328. [Where the Bankruptcy Court] has authorized a trustee to serve as his own attorney, the trustee is entitled to compensation as an attorney only to the extent that the trustee performed services as an attorney and not for performance of any of the trustee’s duties that are generally performed by a trustee without an attorney’s assistance. In re Whitney, 27 B.R. 352, 353-54 (Bkrtcy.D.Me.1983) [Emphasis added], 11 U.S.C. § 328(b). The demarcation between trustee services and attorney services should be clear and distinct. The specific subject matter and the nature of the problem that implicates legal services should be made apparent from the records.... In order for a trustee who retains himself as attorney for an estate to recover for legal services performed, as distinguished from the trustee’s statutory duties, the attorney must establish that the services claimed are not those generally performed by a trustee without the assistance of an attorney. In re Minton Group Inc.," }, { "docid": "8988714", "title": "", "text": "lower limits on the award of attorney fees in bankruptcy cases. Matter of Hamilton Hardware Co., Inc., supra; also 2 Collier ¶ 330.05[2][a], 17. That rule 219(c)(3), R.B.P., provides that “... compensation may be allowed an attorney ... only for professional services.” 18. That for the services of an attorney to be chargeable as a cost of administration, the attorney must “exercise professional legal skill and expertise beyond the ordinary knowledge and skill of the trustee”, and the attorney cannot be compensated for the performance of the fiduciary duties of the trustee-client. In Re McAuley Textile Corp., 11 B.R. 646 (Bkrtcy.D.Maine, 1981); In Re Pajarito American Indian Art, Inc., supra; Matter of U. S. Golf Corp., supra; Matter of First Colonial Corp. of America, supra; CLE-Ware Industries, Inc. v. Sokolsky, supra; 2 Collier ¶ 327.01 (15th Ed. 1981); and 124 Cong.Ree. H11, 091 (daily ed. September 28, 1978) S17,-408 (daily ed. Oct. 6, 1978). 19. That the purpose of consolidating the functions of the trustee and attorney in one person is for the purpose of reducing the cost of administering the case. 2 Collier ¶327.03[5], citing In Re Mabson Lumber Co., 394 F.2d 23 (2nd Cir. 1968). 20.That: “The purpose of permitting the trustee to serve as his own counsel is to reduce costs. It is not included to provide the trustee with a bonus by permitting him to receive two fees for the same service or to avoid the maxima fixed in section 326. Thus, this subsection requires the court to differentiate between the trustee’s services as trustee, and his services as trustee’s counsel, and to fix compensation accordingly. Services that a trustee normally performs for an estate without assistance of counsel are to be compensated under the limits fixed in section 326. Only services that he performs that are normally performed by trustee’s counsel may be compensated under the maxima imposed by this section [328].” 2 Collier ¶ 327.03[5] (15th Ed. 1981), quoting H.R. Rep.No. 595,95th Cong., 1st Sess. 310-311 (1977). 21. That the Advisory Committee Note to Rule 215(e), R.B.P., explains: “It is not intended that such" }, { "docid": "7134575", "title": "", "text": "less. . The Report of the Proceedings of the Judicial Conference of the United States held on March 30-31, 1967 noted at p. 34 that the Committee on Bankruptcy Administration “recommended that General Orders 42 and 44 be closely observed and no attorney’s fee be allowed without an appropriate and detailed fee application which should include professional duties only and should never be based on du-' ties properly performed by a trustee, receiver or other non-professional officer.” . Since § 72 of the Act as amended in 1938 limits the trustee’s compensation only for services required of him, see In re Ira Haupt & Co., 361 F.2d 164, 166 (2 Cir. 1966), some districts have sought to produce somewhat larger individual compensation without burdening the estate, and also to avoid line-drawing problems, by appointing trustees who are also lawyers as attorneys pro se upon proper petition under General Order 44. See Proceedings of Third Seminar for Referees in Bankruptcy 13 (1966); 3 Collier on Bankruptcy § 62.12; 4A id. § 72.01. This procedure would seem acceptable and even desirable in the ease of small or medium sized estates heading for liquidation, since there is little reason why two people should have to familiarize themselves with the relevant facts at the estate’s expense. Clearly, for example, the six hours the attorney here spent communicating with the trustee would have been saved by a unitary administration. . General Order 42 is a sufficient answer to the contention that this work, if not compensable at professional rates, is at least compensable at some lower rate. . In re Hudson & Manhattan Railroad Co., 339 F.2d 114 (2 Cir. 1964), and In re Wal-Feld Co., Inc., 345 F.2d 676 (2 Cir. 1965), hold that where a law firm provides a wide range of services for a trustee over a considerable period of time and ultimate payment is virtually assured, “time required” is a principal method of valuation and there is “no excuse for an established law firm to rely on estimates made on the eve of payment and almost entirely unsupported by daily records" }, { "docid": "23281873", "title": "", "text": "created exception, whose contours are themselves vague, excluding “orders not amounting to judicial rulings adjudging the rights of parties.” 2 Collier, Bankruptcy ¶ 24.11, at 732, ¶ 24.39 (14th ed. 1964); see In re Berthoud, 238 F. 797 (2 Cir. 1916); General Elec. Co. v. Beehive Telecasting Corp., 284 F.2d 507 (10 Cir. 1960); Lesser v. Migden, 328 F.2d 47 (2 Cir. 1964). If the decision below did nothing more than uphold the Referee’s exercise of discretion in declining to require severance of the retainer for alleged dilatory performance, we would consider the appeal as presenting a mere administrative matter beyond our jurisdiction to review. However, as will appear hereafter, appellants’ argument raises the question of the bower of the court to authorize a trustee to appoint his own firm as counsel and of general practice in the administration of bankrupt estates. We think this takes the case outside the judicially created exception. Until 1938, § 72 of the Bankruptcy Act prohibited a trustee in bankruptcy from receiving “any other or further compensation for his services” than that expressly authorized by the statute. This plainly forbade any allowance for legal services performed in addition to the trustee’s statutory duties. See In re George Halbert Co., 134 F. 236 (2 Cir. 1904); Holland v. McIlwaine, 223 F. 777 (4 Cir. 1915). However, the Chandler Act added to the quoted provision the phrase “as required by this Act.” Since the trustee is not required to render legal services, the amendment would seem to permit a further allowance to him for acting as his own lawyer. Without more, however, a trustee who was an attorney would still have been barred from sharing in fees allowed his firm by General Order 42 as it then stood. See 11 U.S.C.App. p. 2016; Weil v. Neary, 278 U.S. 160, 172-173, 49 S.Ct. 144, 73 L.Ed. 243 (1929). Addressing itself to this problem Congress at the same time enacted § 62c: “A custodian, receiver, or trustee or the attorney for any of them, or any other attorney, rendering services in a proceeding under this title or in" }, { "docid": "22623963", "title": "", "text": "guidelines in the bankruptcy context requires that at least two additional considerations be kept in mind. First, the strong policy of the Bankruptcy Act that estates be administered as efficiently as possible demands recognition. See In re Bemporad Carpet Mills, Inc., 434 F.2d at 990; Texas Bank & Trust Co. v. Crippen, 235 F.2d 472, 476 (5th Cir. 1956). Indeed it has been suggested that “[ejconomy is the most important principle” to be considered in awarding fees to the attorneys for the trustee. 3A J. Moore & L. King, Collier on Bankruptcy, ¶ 62.12[5], at 1483 (14th ed. 1975). This does not mean that the bankruptcy judge should be parsimonious — that would be a false economy which would discourage competent counsel from offering their services to trustees in bankruptcy — but rather that he should award an amount which is “at the lower end of the spectrum of reasonableness.” Jacobowitz v. Double Seven Corp., 378 F.2d at 404. Since attorneys assisting the trustee in the administration of a bankruptcy estate are acting not as private persons but as officers of the court, Official Creditors’ Committee of Fox Markets, Inc. v. Ely, 337 F.2d 461, 465 (9th Cir. 1964), they should not expect to be compensated as generously for their services as they might be were they privately employed. In re York International Building, Inc., 527 F.2d at 1069; Herzog, Fees and Allowances in Bankruptcy, 36 Conn.B.J. 374, 376-77 (1962). Second, there are a number of peculiarities of bankruptcy practice — such as the award of ad interim allowances and the possibility that some officers of the court may be furnishing services to the estate in more than one capacity — which could lead to the award of duplicative fees or compensation for non-legal services if overlooked. The Bankruptcy Act forbids such a result. 11 U.S.C.A. §§ 102,104 (1953 & Supp.1976); R. Bankruptcy Pro. 219. Determining a reasonable attorneys’ fee is a three-step process. In the first phase, the bankruptcy judge or district court must ascertain the nature and extent of the services supplied by the attorney. To this end," }, { "docid": "22840072", "title": "", "text": "that a major portion, if not all, of the disputed 573y3 hours represents time spent by these attorneys rendering legal services for Levine and not for the debtor. On remand, these disputed items should be reviewed item-by-item before a determination is made as to which, if any, are properly chargeable to the debtor. No compensation should be allowed for any services found to have been rendered to Levine as an individual. The appellants’ second objection to the compensation award to the attorneys for the debtor is that the award represents compensation for ministerial and administrative services not properly compensable as professional services within the meaning of General Order 42. General Order 42 provides as follows: “No allowance of compensation shall be made to any attorney for a receiver, trustee or debtor in possession except for professional services.” The standards of professional services are set forth in 3A Collier on Bankruptcy H 62.12, at 1481-82 (14th ed. 1971): “The services for which an attorney for a receiver or trustee may claim compensation are scarcely more sus-ceptable of exhaustive definition than are the administrative duties of his client. Only professional services, it is true, are entitled to compensation, and General Order 42 is clear enough not to leave any room for a charge for non-professional services, such as services of a commercial or clerical nature, or as accountant, even if this charge be made at a rate which in no wise differs from the rate the officer would have to pay if the services were rendered by a non-lawyer. However, within the scope of the term ‘professional services’ the conceivable variety of legal services is co-extensive with the activities of the officer himself . The allowance of compensation for such services may be said to be governed by one leading test: wherever the officer (trustee or receiver) is by the statute either directed or in his sound discretion permitted to act, and where the compliance with his duties or the exercise of his privileges require legal advice or as sistance, the estate is chargeable with a reasonable allowance of the officer’s attorney," }, { "docid": "3624969", "title": "", "text": "that many hours for which compensation is sought are not shown to have been devoted to the performance of professional legal services. Unless accompanied by unusual difficulties, the actual performance of fiduciary duties of the receiver and trustee in bankruptcy are their own responsibility not the responsibility of their counsel; including the obligation to reduce the estate to money, In re Mabson Lumber Co., Inc., 394 F.2d 23, 24 (2d Cir. 1968); Bankruptcy Act § 47(a)(1), 11 U.S.C. § 75(a)(1); Bankruptcy Rule 605(a), to pay routine bills, 3A Collier on Bankruptcy ¶ 69.09[1] 14th ed. at 1511, including taxes, In re Union Dredging Company, 225 F. 188, 195 (D.Del.1915), to arrange insurance coverage for the estate, 3A Collier, supra ¶ 62.09[1], to examine books and records of the estate, see In re J. M. Wells, Inc., 575 F.2d 329, 331 (1st Cir. 1978); In re Mabson Lumber Co., Inc., supra at 24, and to sell real estate of the business as a going concern, In re Leader International Industries, Inc., 2 B.C.D. 588, 590 (E.D.Mich.1976); see also Bankruptcy Act § 70(f); 11 U.S.C. § 110(f). There were unusual difficulties in this case relating to various real and personal property sales that required legal expertise, involving tax loss carryovers, lien status determinations (perfection and priority), and problems relating to mortgage interest rates and moratoria. Other activities required legal expertise as well, particularly negotiations for postpetition payment and indemnity arrangements, and moratoria, as well as negotiating and arranging postpetition loans and certificates of indebtedness. See In re Union Dredging Company, 225 F. 188, 195 (D.Del.1915). Although examining and objecting to claims is a statutory duty of the trustee, In re Cliff House Motor Hotel, 2 B.C.D. 460, 461 (W.D.Mo.1976); Bankruptcy Rule 218, the difficult problems here posed warranted the services of an attorney in evaluating the allowability, priority and secured status of claims. In those instances where insufficient explanatory information did not enable a determination of the precise nature of the services rendered, the court felt compelled to determine that the services were not compensable as legal services, see In re Hamilton" }, { "docid": "22840071", "title": "", "text": "fashioning this agreement was included in their application for allowance as attorneys for the debtor. It is clear that attorneys entitled to fees for services in bankruptcy and Chapter XI proceedings will have their fees reduced proportionately where their services were partly performed on behalf of private clients. 3A Collier on Bankruptcy ¶ 62.12, at 1493 (14th ed. 1971) states: “While an attorney’s association with other parties in interest does not necessarily prevent his appointment as counsel for the estate, yet it may cause him to suffer a reduction of his compensation out of the estate on the ground that certain services are considered to have been rendered for the benefit of his private clients rather than for the estate.” Further, Collier adds: “Where there is such a multiplicity of beneficiaries of one particular service, courts are anxious to see in the estate only a kind of secondary beneficiary of efforts made primarily for, and therefore to be compensated by, the directly interested creditors.” (footnote omitted.) Id. , Similarly, the record in this case indicates that a major portion, if not all, of the disputed 573y3 hours represents time spent by these attorneys rendering legal services for Levine and not for the debtor. On remand, these disputed items should be reviewed item-by-item before a determination is made as to which, if any, are properly chargeable to the debtor. No compensation should be allowed for any services found to have been rendered to Levine as an individual. The appellants’ second objection to the compensation award to the attorneys for the debtor is that the award represents compensation for ministerial and administrative services not properly compensable as professional services within the meaning of General Order 42. General Order 42 provides as follows: “No allowance of compensation shall be made to any attorney for a receiver, trustee or debtor in possession except for professional services.” The standards of professional services are set forth in 3A Collier on Bankruptcy H 62.12, at 1481-82 (14th ed. 1971): “The services for which an attorney for a receiver or trustee may claim compensation are scarcely more sus-ceptable" } ]

[ { "docid": "9916775", "title": "", "text": "solve them. There may have been an equal number of problems that were not raised and therefore — because Congress is too busy to resolve problems that are entirely hypothetical — not provided for. It is perverse on the one hand to penalize draftsmen for having made detailed provision for the problems that were brought to their attention by denying them a helping judicial hand in the problem areas they did not foresee, and on the other hand to treat a lazily drafted statute, worded in generalities, as a broad delegation to the judiciary to create a sensible code of governance. The legal mind craves an orderly legal universe — a seamless web of rationality— in which every word in a statute or in a contract or in a judicial opinion has a unique and indispensable function and in which there are no gaps and no redundancies. Yet there are loads of gaps and redundancies in the law. Of specific relevance here, the elimination of the minimum amount in controversy from section 1331 made of the numerous special federal jurisdictional statutes that required no minimum amount in controversy (28 U.S.C. §§ 1337, 1340, and 1343 and many others) so many beached whales, yet no one thought to repeal those now-redundant statutes. It is apparent that Congress, while it gave careful consideration to a vast number of issues that might arise in the administration of the new federal pension law, overlooked a vast number of other issues— including that of declaratory judgment actions by ERISA plans containing coordination-of-benefits provisions. For such omissions, which seem neither deliberate nor consistent with administering the statute sensibly in accordance with its overall goals and structure, section 1331 would provide a suitable remedy, as held in Northeast Dept. ILGWU Health & Welfare Fund v. Teamsters Local Union No. 229 Welfare Fund, 764 F.2d 147, 154-59, 164-66 (3d Cir.1985), and other cases illustrated by Airco Industrial Gases, Inc. v. Teamsters Health & Welfare Pension Fund, 850 F.2d 1028, 1033 and n. 5 (3d Cir.1988), and Provident Life & Accident Ins. Co. v. Waller, 906 F.2d 985, 988-91" } ]

[ { "docid": "16904103", "title": "", "text": "IRS claims for 1987 and 1988 even if there was a jurisdictional hook. Therefore, the remainder of the discussion, which details why it is inappropriate to exercise jurisdiction over the IRS claims, pertains only to the claims for the years 1989 and 1990. ii. Jurisdiction to Entertain Tax Claims Under 28 U.S.C. § 1340. Shabahang asserts that the Court may exercise subject matter jurisdiction over its tax claims under 28 U.S.C. § 1340. Specifically, Shabahang states that section 1340 “grants the district court or the Court of International Trade original jurisdiction in any civil action arising under Acts of Congress providing for internal revenue or revenue from imports, both present in the instant case.” Def.’s Br., at 8. This, however, is not the same language as that actually provided for in section 1340. The district courts shall have original jurisdiction of any civil action arising under Acts of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Court of International Trade. 28 U.S.C. § 1340 (1994) (emphasis added). Contrary to Shabahang’s reading of the statute, it is plain that original jurisdiction over internal revenue matters lies with the district courts, not the Court of International Trade (except in those instances where Congress expressly assigns such matters to the jurisdiction of this court, which is not the case with respect to the instant IRS claims). Moreover, even if the Court were to assume that section 1340 provided an avenue to trigger original jurisdiction over the tax claims involving the IRS, section 1340 in and of itself does not create jurisdiction. Indeed, section 1340’s “general grant of jurisdiction does not constitute a waiver of sovereign immunity.” Murray v. United States, 686 F.2d 1320, 1324 (8th Cir.1982) (citations omitted). Rather, consent to suit must be based on some other provision of the Internal Revenue Code. Shabahang fails to identify any other provisions of the tax code that might provide a basis for jurisdiction. Consequently, it is apparent that this Court does not possess original jurisdiction under 28 U.S.C. § 1340 to entertain the outstanding" }, { "docid": "7377160", "title": "", "text": "the present appeal from the dismissal below. We think the District Court correctly decided that it lacked jurisdiction. Under the distribution of judicial power which Congress has established, the Customs Court has “exclusive jurisdiction to review on protest the decisions of any collector of customs * * 28 U.S.C. § 1583 (1958) (emphasis supplied) . Conversely, 28 U.S.C. § 1340 provides that “The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for * * * revenue from imports or tonnage except matters within the jurisdiction of the Customs Court.” 28 U.S.C. § 1340 (1958) (emphasis supplied). This jurisdictional scheme is not limited to non-constitutional matters, for it is clear that the customs courts can and do, as in the two companion cases, pass upon constitutional questions. Horton v. Humphrey, D.C.D.C., 146 F.Supp. 819, 821 (3-judge court), affirmed per curiam, 1956, 352 U.S. 921, 77 S.Ct. 224, 1 L.Ed. 2d 157; Morgantown Glassware Guild, Inc. v. Humphrey, 98 U.S.App.D.C. 375, 236 F.2d 670, certiorari denied, 1956, 352 U.S. 896, 77 S.Ct. 133, 1 L.Ed.2d 87. Decisions of the Court of Customs and Patent Appeals are reviewable in the Supreme Court on writ of certiorari, 28 U.S.C. § 1256 (1958). Appellant contends, however, that the District Court has jurisdiction notwithstanding the exception in § 1340, since this is not a case “arising under any Act of Congress providing for * * * revenue from imports * * Rather, they contend it is a case “aris[ing] under the Constitution, laws, or treaties of the United States,” and thus within the ambit of 28 U.S.C. § 1331 (1958). Section 1331 vests federal question jurisdiction in the district courts and, unlike § 1340, contains no exception relating to Customs Court jurisdiction. But we do not agree that Congress’ failure to provide an exception to § 1331 similar to that specified in § 1340 indicates an intent to open a loophole in its clear purpose to exclude customs cases from the district courts. When Congress provides a specific judicial remedy, relief may generally be accorded only through" }, { "docid": "8281032", "title": "", "text": "is imposed with respect to such imported merchandise in the event dumping margins are found to exist. I am satisfied that since the appraised value of merchandise and the possible imposition of an additional duty is at issue, the matter is exclusively within the jurisdiction of the Customs Court and that this court is without jurisdiction. It may be conceded, and in fact is not disputed by the defendants, that if the antidumping procedures ultimately result in additional duties, the amounts, in view of the substantial importation of television sets by plaintiff, will run far in excess of $10,000. And since it asserts constitutional and statutory claims, plaintiff contends that this court has jurisdiction by virtue of section 1331 of Title 28, which provides: “§ 1331. FEDERAL QUESTION; AMOUNT IN CONTROVERSY; COSTS “(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.” Hov/ever, this contention disregards section 1340 of Title 28, which provides: “§ 1340. INTERNAL REVENUE; CUSTOMS DUTIES “The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court.” Also applicable, and negating jurisdiction in this court, is section 1582(a) of Title 28, United States Code, which defines the jurisdiction of the Customs Court: “§ 1582. JURISDICTION OF THE CUSTOMS COURT “(a) The Customs Court shall have exclusive jurisdiction of civil actions instituted by any person whose protest pursuant to the Tariff Act of 1930, as amended, has been denied, in whole or in part, by the appropriate customs officer, where the administrative decision, including the legality of all orders and findings entering into the same, involves: (1) the appraised value of merchandise; (2) the classification and rate and amount of duties chargeable; (3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury; (4) the exclusion" }, { "docid": "16904102", "title": "", "text": "exercise jurisdiction over these matters even if Shaba-hang offered a viable statutory basis for jurisdiction over the IRS claims. It is well established that “[a] court with jurisdiction under Article III of the Constitution will not decide cases that are moot because of an absence of ‘subject matter on which the judgment of the court can operate.’ ” Torrington Co. v. United States, — Fed. Cir. (T)-, -, 44 F.3d 1572, 1577 (1995) (quoting Ex parte Baez, 177 U.S. 378, 390, 20 S.Ct. 673, 44 L.Ed. 813 (1900)). In this instance, Shabahang settled all tax deficiency matters for two of the four years at issue, 1987 and 1988. See Pl.’s Resp., at App. 1-3. Specifically, in April 1995 Shaba-hang and the IRS agreed that Shabahang should pay additional taxes and penalties, although apparently an amount less than that initially assessed by the IRS. As a result, for tax purposes there is no controversy regarding the valuation of Shabahang’s entries for the years 1987 and 1988. And, because they are moot, the Court cannot review the IRS claims for 1987 and 1988 even if there was a jurisdictional hook. Therefore, the remainder of the discussion, which details why it is inappropriate to exercise jurisdiction over the IRS claims, pertains only to the claims for the years 1989 and 1990. ii. Jurisdiction to Entertain Tax Claims Under 28 U.S.C. § 1340. Shabahang asserts that the Court may exercise subject matter jurisdiction over its tax claims under 28 U.S.C. § 1340. Specifically, Shabahang states that section 1340 “grants the district court or the Court of International Trade original jurisdiction in any civil action arising under Acts of Congress providing for internal revenue or revenue from imports, both present in the instant case.” Def.’s Br., at 8. This, however, is not the same language as that actually provided for in section 1340. The district courts shall have original jurisdiction of any civil action arising under Acts of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Court of International Trade. 28 U.S.C. § 1340 (1994)" }, { "docid": "8101043", "title": "", "text": "government admits. In sum, the issue raised now clearly is concerned not with the validity or priority of the liens, but with their extinguishment in a manner not permitted by the statutes, and Section 1340 is therefore not applicable. Coson v. United States, D.C.Cal. 1958, 169 F.Supp. 671 does not help appellant. The court in that case assumed jurisdiction under Section 1340 because the question presented was whether or not a tax lien existed. Similarly, nothing in the court’s opinion in United States v. Boyd, 5 Cir., 1957, 246 F.2d 477, an action by the government under 26 U.S.C. § 7403, to enforce tax liens, implicitly or explicitly supports appellant’s position on the jurisdictional issue. See also United States v. Brosnan, D.C.W.D.Pa. 1958, 164 F.Supp. 357. Appellant is not without remedy. Congress has established administrative and judicial procedures by which federal tax liens may be discharged, 26 U.S.C. §§ 6325, 7403, and 7424, none of which have been followed in this case. The district court correctly ruled that it did not have jurisdiction under 28 U.S.C. § 2410(a), and since we find Section 1340, 28 U.S.C. to be inapplicable as well, Judgment will be entered affirming the judgment of the district court. . “The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court.” . These two sections are substantially identical, and, insofar as relevant, provide as follows: “(a) Invalidity of lien without notice.— Except as otherwise provided in subsection (c), the lien imposed by section 6321 shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed by the Secretary or his delegate — .”" }, { "docid": "22951797", "title": "", "text": "in the methods employed by Treasury in making its LTFV determination. According to Penney, Treasury does not disclose either the facts upon which its determination is based or the criteria it applies in reaching its decision. It is alleged that Treasury regularly receives confidential information from parties having an interest in the outcome of the proceeding and that it relies on this information without disclosure to the parties adversely affected thereby. We do not reach on this appeal the question of whether or not the procedures employed by the Treasury Department violate the Due Process Clause of the Fifth Amendment. The question for decision is, rather, whether this constitutional issue is to be determined initially by the District Court or the Customs Court. Since this case is claimed to arise under the “Constitution, laws, or treaties of the United States,” Penney contends that jurisdiction derives from 28 U.S.C. § 1331(a), general federal question jurisdiction. It is further claimed that more than $10,000 is in controversy, so no problem is presented in regard to the statutory minimum amount in controversy. We agree with the District Court, however, that Penney must seek its relief against the government in the Customs Court. In 28 U.S.C. § 1582(a), as amended by section 110 of the Customs Courts Act of 1970, Pub.L. No. 91-271, 84 Stat. 274 (June 2, 1970), Congress has provided that the Customs Court shall have “exclusive jurisdiction” of all civil actions challenging an administrative decision, “including the legality of all orders and findings entering into the same,” when that decision involves, inter alia, the appraised value of merchandise, the classification and rate and amount of duties chargeable, all charges or exactions within the jurisdiction of the Secretary of the Treasury, or the exclusion of merchandise from entry or delivery under any provision of the customs laws. Also relevant is 28 U.S.C. § 1340, which provides : The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue or revenue from imports or tonnage, except matters within the jurisdiction of the Customs" }, { "docid": "5429111", "title": "", "text": "operations. Jerlian Watch Company, Inc., an insular watch producer, filed an action in the District Court of Guam seeking declaratory and injunctive relief against the implemen tation of the 1979 Allocation Rules. The complaint alleged that the 1979 Rules were arbitrary and capricious, and that procedural deprivations in the rulemaking process invalidated the rules. The district court, as noted, found that exclusive jurisdiction over the cause of action lay in the Customs Court pursuant to 28 U.S.C. § 1582(a), and dismissed the action for want of jurisdiction. The Customs Court has exclusive jurisdiction over customs matters. 28 U.S.C. § 1582. Conversely, jurisdiction over customs matters is denied to the district courts by 28 U.S.C. § 1340: “The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court.\" (Emphasis supplied.) Plaintiffs contend that, notwithstanding § 1582(a), jurisdiction over this action lies in the district court pursuant to 28 U.S.C. §§ 1331 or 1340 because the primary purpose of the rules and the statute under which the rules were promulgated relates to a traditionally noncustoms purpose, promoting economic stimulation in the insular possessions. Plaintiffs also contend that even if the primary thrust of the rules relates to a traditional customs purpose, so that jurisdiction would ordinarily lie in the Customs Court to consider their challenge, the absence of an “adequate remedy” in the Customs Court vests jurisdiction over the challenge in the district court. Finally, they assert that the district court erred in refusing to consider proffered evidence relating to their financial destruction, because that evidence was relevant to a determination of whether their Customs Court remedy was adequate. We reject each of these arguments. I. Exclusive Customs Court Jurisdiction Plaintiffs contend that the district court has subject-matter jurisdiction over a substantive and procedural challenge to the 1979 Allocation Rules because the rules, although peripherally related to imports, do not involve any actions by Customs Service officials and have a primary purpose other than the traditional tariff" }, { "docid": "22422296", "title": "", "text": "civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930. ****** (i) In addition to the jurisdiction conferred upon the [CIT] by subsections (a)-(h) of this section and subject to the exception set forth in subsection (j) of this section, the [CIT] shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for— (1) revenue from imports or tonnage; (2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue; (3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or (4) administration or enforcement with respect to matters referred to in paragraphs (l)-(3) of this subsection and subsections (a)(h) of this section. To us the Government has argued the exhaustion issue purely as a jurisdictional matter under § 1581. We need not consider the effect of 28 U.S.C. § 2637(d) (1982), which requires parties to exhaust administrative remedies prior to bringing an action before the CIT if \"appropriate.” . The statute still excludes from the district courts matters within the jurisdiction of the CIT. 28 U.S.C. § 1340 (1982). . For collected cases, see Annot., 50 AA.R.Fed. 378 (1980). . The Government emphasizes the Supreme Court’s recent ruling in Heckler v. Ringer, — U.S.-, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984), but that case involves a wholly different statute (Medicare), with a different history and purpose, and accordingly supplies no helpful analogy to the current case. Similarly, Block v. Community Nutrition Institute, — U.S. -, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984) turns on the specific structure of that particular Act (Agricultural Marketing Agreement Act of 1937) and its own statutory objectives. . AAEI-TAG supports this position by noting that the executive branch has no inherent authority to impose restraints on imports, and may do so only if so empowered by Congress. See, United" }, { "docid": "22951798", "title": "", "text": "minimum amount in controversy. We agree with the District Court, however, that Penney must seek its relief against the government in the Customs Court. In 28 U.S.C. § 1582(a), as amended by section 110 of the Customs Courts Act of 1970, Pub.L. No. 91-271, 84 Stat. 274 (June 2, 1970), Congress has provided that the Customs Court shall have “exclusive jurisdiction” of all civil actions challenging an administrative decision, “including the legality of all orders and findings entering into the same,” when that decision involves, inter alia, the appraised value of merchandise, the classification and rate and amount of duties chargeable, all charges or exactions within the jurisdiction of the Secretary of the Treasury, or the exclusion of merchandise from entry or delivery under any provision of the customs laws. Also relevant is 28 U.S.C. § 1340, which provides : The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue or revenue from imports or tonnage, except matters within the jurisdiction of the Customs Court. Penney contends that neither provision bars its suit in the District Court, since its claim in no way concerns the substantive issues which require the expertise possessed by members of the Customs Court. It is therefore contended that the policy behind the grant of exclusive jurisdiction is absent in this case and that constitutional issues can and should be tried in the district courts. To be sure, the nature and extent of procedural due process that must be employed in an administrative proceeding is a question with which federal courts of general jurisdiction frequently deal. However, the procedural issues here arise directly from controversies over issues of substantive customs laws. Although it is conceivable that separate courts could deal with the separate procedural and substantive issues involved, such a result would significantly undermine Congress’ “complete system of corrective justice with respect to matters arising under the customs laws.” Cottman Co. v. Dailey, 94 F.2d 85, 88 (4 Cir. 1938). In interpreting legislation such as that involved in this case, “[e]ourts must * * *" }, { "docid": "23213140", "title": "", "text": "“of Bisno, Rubin, and the Moulin Rouge.” Upon this appeal the principal attack made by the Government upon the judgment below is through its contention that the trial court was without jurisdiction to entertain the action. As previously noted, the complaint predicated jurisdiction upon the provisions of Title 28 U.S.C. § 2410. Subdivisions (a) and (b) of that section are set forth in the margin. The trial court, relying upon the decisions of this court in Seattle Association of Credit Men v. United States, 240 F.2d 906, and Wells v. Long, 162 F.2d 842, held that the effect of § 2410 is only a waiver of sovereign immunity and does not operate to confer jurisdiction upon a federal court to entertain such a suit as this. The trial court proceeded, however, to hold that it had jurisdiction of the action by virtue of § 1340 of Title 28 which provides: “The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court.” The appellant asserts that § 1340 will not support jurisdiction in this case for several reasons: first, that the suit is not one arising under an act of Congress providing for internal revenue. In support of this contention it cites Johnston v. Earle, 9 Cir., 245 F.2d 793. That was a case in which two officers of the Internal Revenue Bureau were sued for alleged tortious seizure and conversion to their own use of a tractor belonging to the plaintiff. This court held that § 1340 did not support the claimed jurisdiction since the recovery sought was solely for tortious conversion, a state tort, by one citizen of the state against other citizens of the same state. There was no claim for the return of federal taxes alleged to have been wrongfully assessed. We think that case is not in point here where the complaint puts in issue the validity of a claimed federal tax lien. In our view, as stated in United States" }, { "docid": "7377159", "title": "", "text": "hazardous and speculative that it constitutes an inadequate remedy * * * which plaintiff may by-pass” to secure redress in a tribunal with statutory authority to enjoin administrative officials. It also asserted that Article III and the due process clause of the Constitution entitle it to have its constitutional claims adjudicated in a court created under Article III. Appellant requested that a three- judge court be convened, pursuant to the provisions of 28 U.S.C. § 2282 (1958). The Government moved to dismiss the complaint for lack of jurisdiction. District Judge McGarraghy, sitting alone, granted the Government’s motion. Appellant thereupon applied to the Chief Judge of this Circuit for an order designating two additional judges to complete a three-judge district court. Chief Judge Prettyman denied the motion. Appellant then sought review from Judge McGarraghy’s ruling by direct appeal to the Supreme Court, and moved for leave to file a petition for a writ of mandamus against Chief Judge Prettyman and District Judge McGarraghy. The Supreme Court dismissed the appeal and denied the motion. Appellant thereupon prosecuted the present appeal from the dismissal below. We think the District Court correctly decided that it lacked jurisdiction. Under the distribution of judicial power which Congress has established, the Customs Court has “exclusive jurisdiction to review on protest the decisions of any collector of customs * * 28 U.S.C. § 1583 (1958) (emphasis supplied) . Conversely, 28 U.S.C. § 1340 provides that “The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for * * * revenue from imports or tonnage except matters within the jurisdiction of the Customs Court.” 28 U.S.C. § 1340 (1958) (emphasis supplied). This jurisdictional scheme is not limited to non-constitutional matters, for it is clear that the customs courts can and do, as in the two companion cases, pass upon constitutional questions. Horton v. Humphrey, D.C.D.C., 146 F.Supp. 819, 821 (3-judge court), affirmed per curiam, 1956, 352 U.S. 921, 77 S.Ct. 224, 1 L.Ed. 2d 157; Morgantown Glassware Guild, Inc. v. Humphrey, 98 U.S.App.D.C. 375, 236 F.2d 670, certiorari denied, 1956, 352" }, { "docid": "3811794", "title": "", "text": "Court below also denied as moot SCM’s motion for preliminary injunctive relief and further denied as moot the motions for leave to intervene of two proposed intervenors, Brother Industries, Ltd. and Royal Typewriter Company. II 28 U.S.C. § 1340 (1970) provides: The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court. 28 U.S.C. § 1582(b) (1970) provides: (b) The Customs Court shall have exclusive jurisdiction of civil actions brought by American manufacturers, producers, or wholesalers pursuant to section 516 of the Tariff Act of 1930, as amended. If the Customs Court has jurisdiction over SCM’s claim pursuant to section 516, then jurisdiction in the Customs Court is exclusive under 28 U.S.C. § 1582(b). However, that exclusive jurisdiction is limited to those claims which can be brought pursuant to section 516. Where no adequate remedy exists in the Customs Court for actions concerning customs matters, the federal district courts have jurisdiction. See, e. g., The Timken Co. v. Simon, supra; J. C. Penney Co. v. Department of Treasury, 439 F.2d 63, 68 (2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971). It follows that it is necessary to examine section 516 to determine whether SCM’s claim is one which can be brought under that statute. Pursuant to section 516(a), an American manufacturer may file a petition with the Secretary either challenging the non-assessment of antidumping duties, if there has been no assessment, or challenging the amount of the special antidumping duties which have been assessed. If the Secretary agrees with the manufacturer’s assertion, he determines that duty should be assessed, if none has been assessed, and, if appropriate, determines the proper rate of duty to be assessed. The Secretary also informs the manufacturer of his determination. § 516(b). If the Secretary determines that the duty assessment was correct or that no antidumping duty should be assessed, he publishes that decision and so informs the manufacturer. The latter then has 30" }, { "docid": "8281033", "title": "", "text": "contention disregards section 1340 of Title 28, which provides: “§ 1340. INTERNAL REVENUE; CUSTOMS DUTIES “The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court.” Also applicable, and negating jurisdiction in this court, is section 1582(a) of Title 28, United States Code, which defines the jurisdiction of the Customs Court: “§ 1582. JURISDICTION OF THE CUSTOMS COURT “(a) The Customs Court shall have exclusive jurisdiction of civil actions instituted by any person whose protest pursuant to the Tariff Act of 1930, as amended, has been denied, in whole or in part, by the appropriate customs officer, where the administrative decision, including the legality of all orders and findings entering into the same, involves: (1) the appraised value of merchandise; (2) the classification and rate and amount of duties chargeable; (3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury; (4) the exclusion of merchandise from entry or delivery under any provisions of the customs laws; * * I agree with the observation made in Eastern States Petroleum Corp. v. Rogers, with respect to section 1331: “Section 1331 vests federal question jurisdiction in the district courts and, unlike § 1340, contains no exception relating to Customs Court jurisdiction. But we do not agree that Congress’ failure to provide an exception to § 1331 similar to that specified in § 1340 indicates an intent to open a loophole in its clear purpose to exclude customs cases from the district courts. When Congress provides a specific judicial remedy, relief may generally be accorded only through the specified procedure.” Particularly apposite to the question of jurisdiction is North American Cement Corp. v. Anderson, where Circuit Judge Edgerton wrote for a unanimous court. There, American cement manufacturers filed information with the Secretary of the Treasury and asked that he investigate whether cement imported from Norway was sold here at less than its fair value. The Secretary found to the contrary that Norwegian" }, { "docid": "18579170", "title": "", "text": "conferred upon the Court of International Trade by subsections (a)-(h) of this section ... the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for— (1) revenue from imports or tonnage; (2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue; (3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or (4) administration and enforcement with respect to the matters referred to in paragraphs (1M3) of this subsection and subsections (a)-(h) of this section. The parties appear to agree that the district court would have jurisdiction over the Lanham Act (Section 42) claim even if that claim fell within one of the categories listed in 28 U.S.C. § 1581. We fail to see why that would be so: if the Customs Courts Act implicitly modifies 28 U.S.C. § 1331 and 28 U.S.C. § 1338(a) by vesting exclusive jurisdiction over specified cases in the Court of International Trade, then it ought to follow that it modifies the Lanham Act’s jurisdictional provision, 15 U.S.C. § 1121, as well. We need not decide this issue, however, because we conclude that neither of the appellants’ claims falls within the categories of cases listed in 28 U.S.C. § 1581. . The Government argues that a protest would not be available to an importer challenging an exclusion of goods under Section 526 because it is a trademark law, not a \"customs law” and, therefore, the Court of International Trade and the Federal Circuit have no jurisdiction over cases arising under that Section. We believe, however, that even if 28 U.S.C. § 1581 covers the case of an importer’s challenge to Customs’ exclusion of goods under Section 526, it does not extend to a third-party’s challenge to Customs’ admission of goods. Thus, it is unnecessary for us to pass on this arcane point of Customs procedure. . The remainder" }, { "docid": "5039107", "title": "", "text": "where federal relief is not an available avenue of litigation at all, the absence of jurisdiction follows inexorably. In conclusion, Mottley, Wycoff, Thiokol, Allegheny, and LaChemise Lacoste all command dismissal of this action. Wycoff follows logically from Mottley and the procedural nature of the Declaratory Judgment Act. This circuit has expressly adopted its reasoning; this court must follow its dictates. Crown Cork’s action must be dismissed. Crown Cork’s belated reliance on 28 U.S.C. § 1340 does not alter this conclusion. Although in its complaint Crown Cork alleged jurisdiction under § 1331 only, in supplemental memoranda filed at the court’s request Crown Cork argued that 28 U.S.C. § 1340 also gave this court jurisdiction over its claim. Section 1340 provides that: The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court. (Emphasis supplied). Section 1340 has no requirement of jurisdictional amount. It therefore allows Crown Cork to defeat the Commission’s argument that this court lacks jurisdiction because Crown Cork failed to allege that the amount in controversy exceeded $10,000, as required by § 1331. However, § 1340 does not remove the need for determining whether the case “arises under” an Act of Congress — here, the Internal Revenue Code. The issue is precisely the same as the issue involved in determining the existence of general federal question jurisdiction under § 1331: the court must determine whether the action, not the defense, “arises under” the Internal Revenue Code. Clearly, the defense does; unfortunately for Crown Cork, the action does not. Thiokol supports this conclusion. In that case the plaintiff alleged that 28 U.S.C. § 1338(a), the provision which gives the district courts jurisdiction over all actions “arising under” the patent laws, gave the court jurisdiction over its claim. The court of appeals disagreed, applying the Wycoff analysis. 448 F.2d at 1330. By relying on Wycoff and thus applying the same analysis to both § 1331 and § 1338(a) actions, the court demonstrated that the words “arising" }, { "docid": "10936824", "title": "", "text": "first to the issue of whether a proper basis of jurisdiction exists for hearing this cause. Because of the limited nature of a district court’s jurisdiction, the court may inquire into its jurisdiction sua sponte. Rice v. Rice Foundation, 610 F.2d 471 (7th Cir.1979). A. Jurisdiction Plaintiff asserts a total of seven bases for jurisdiction: 28 U.S.C. § 1340, a general jurisdiction statute; 26 U.S.C. §§ 7421, 7425, and 7428, which are all provisions of the Internal Revenue Code; and 42 U.S.C. §§ 1981, 1983, and 1986, all provisions of the Civil Rights Act. The court will analyze these bases in turn. 1. General Jurisdiction The general jurisdiction statute offered by plaintiff, 28 U.S.C. § 1340, provides: The district court shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Court of International Trade. The question of whether plaintiff can rely on this provision as a basis for jurisdiction hinges on whether this statute itself provides plaintiff with a cause of action. The very language of the statute militates against such a construction. Section 1340 gives jurisdiction for an action arising under the Internal Revenue laws; as such, the suit must be based on some cause of action which the Internal Revenue Code recognizes and allows the plaintiff to bring. Absent some recognition of this kind of suit under the Internal Revenue Code, however, § 1340 will not create an independent basis for jurisdiction. Rather, § 1340 is designed merely to give a district court jurisdiction should it find a separate basis for the claim. As one court has noted, “Given the limitations which Article III of the Constitution places on the jurisdiction of the federal courts, it is doubtful that the various jurisdictional statutes [like § 1340] could do more than waive the congressionally imposed jurisdictional amount requirement.” Crown Cork & Seal Co. v. Pennsylvania Human Relations Comm., 463 F.Supp. 120, 127 n. 8 (E.D.Pa.1979). It appears that this case does not arise under the Internal Revenue Code." }, { "docid": "8545978", "title": "", "text": "R. DORSEY WATKINS, District Judge. This is an action to recover fifty dollars paid by the plaintiff under protest in partial satisfaction of a cabaret excise tax assessment levied by the defendant in the amount of One Thousand, Five Hundred Fifty-eight Dollars and Ten Cents ($1,558.10) for the fourth quarter of 1954. ******The answer of the defendant District Director, which challenged the jurisdiction of this court, was coupled with a counterclaim for the unpaid balance of the assessment plus interest. Plaintiff responded to the counterclaim by denying the legality of the assessment, and in the alternative claimed as a set-off and credit. Two Thousand, Nine Hundred Eighteen Dollars and Ninety-seven cents ($2,918.97), a reduction in personal income tax allegedly due because of the plaintiff’s failure to deduct the cabaret tax from the gross income of his business in computing his income tax for the period April 1, 1952 through March 31, 1955. The United States then moved to intervene and the defendant district director’s counterclaim was amended so as to permit its being treated as the complaint in intervention of the United States. The first question presented is one of jurisdiction, the defendant and the intervenor contending that the court lacks jurisdiction of a suit for refund of taxes when only a part of the tax assessed has been paid. The relevant statutory provisions, found in Title 28 U.S.C. § 1340, and Title 26 U.S.C. § 7422(a), 1954 I.R.C., are as follows: “§ 1340. Internal revenue; customs duties “The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court.” “§ 7422. Civil actions for refund “(a) No suit prior to filing claim for refund. — No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in" }, { "docid": "10936823", "title": "", "text": "Moore’s Federal Practice, § 56.15 (2d ed. 1983). Thus, the moving party must demonstrate the absence of a genuine issue of material fact. The court views all evidence submitted in favor of the non-moving party. Even if there are some disputed facts, where the undisputed facts are the material facts involved and those facts show one party is entitled to judgment as a matter of law, summary judgment is appropriate. Egger v. Phillips, 710 F.2d 292, 296-97 (7th Cir.1983); Collins v. American Optometric Ass’n., 693 F.2d 636, 639 (7th Cir.1982). Further, if the court resolves all factual disputes in favor of the non-moving party and still finds summary judgment in favor of the moving party is correct as a matter of law, then the moving party is entitled to summary judgment in his favor. Egger, 710 F.2d at 297. See also Bishop v. Wood, 426 U.S. 341, 348, 348 n. 11, 96 S.Ct. 2074, 2079, 2079 n. 11, 48 L.Ed.2d 684 (1976). Although not raised by the defendants directly in their motion, the court turns first to the issue of whether a proper basis of jurisdiction exists for hearing this cause. Because of the limited nature of a district court’s jurisdiction, the court may inquire into its jurisdiction sua sponte. Rice v. Rice Foundation, 610 F.2d 471 (7th Cir.1979). A. Jurisdiction Plaintiff asserts a total of seven bases for jurisdiction: 28 U.S.C. § 1340, a general jurisdiction statute; 26 U.S.C. §§ 7421, 7425, and 7428, which are all provisions of the Internal Revenue Code; and 42 U.S.C. §§ 1981, 1983, and 1986, all provisions of the Civil Rights Act. The court will analyze these bases in turn. 1. General Jurisdiction The general jurisdiction statute offered by plaintiff, 28 U.S.C. § 1340, provides: The district court shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Court of International Trade. The question of whether plaintiff can rely on this provision as a basis for jurisdiction hinges on whether this statute" }, { "docid": "8545979", "title": "", "text": "the complaint in intervention of the United States. The first question presented is one of jurisdiction, the defendant and the intervenor contending that the court lacks jurisdiction of a suit for refund of taxes when only a part of the tax assessed has been paid. The relevant statutory provisions, found in Title 28 U.S.C. § 1340, and Title 26 U.S.C. § 7422(a), 1954 I.R.C., are as follows: “§ 1340. Internal revenue; customs duties “The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court.” “§ 7422. Civil actions for refund “(a) No suit prior to filing claim for refund. — No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary or his delegate, according to the provisions of law in that regard, and the regulations of the Secretary or his delegate established in pursuance thereof.” The defendant and intervenor freely admit that the meaning of the word “tax” as used in Section 7422(a) is ambiguous enough to be open to construction by the court in determining whether or not a taxpayer may litigate his assessed liability after a partial payment; and urge that the legislative history of (1) the creation of the Board of Tax Appeals; of (2) the exempting of federal tax controversies from the Declaratory Judgments Act, 28 U.S.C. §§ 2201, 2202; and of (3) the prohibition of suits to enjoin the collection of federal taxes together with certain pronouncements of the Supreme Court regarding the rights of taxpayers to judicial determination of their tax liabilities as well as the Supreme Court’s definition of the word “tax” in Snyder v. Marks, 1883, 109 U.S. 189," }, { "docid": "5960142", "title": "", "text": "in addition to the duties otherwise imposed by this chap ter, an additional duty equal to the net amount of such bounty or grant. . The Secretary of the Treasury shall from time to time ascertain and determine, or estimate, the net amount of each such bounty or grant, and shall declare the net amount so determined or estimated.” The complaint alleges that the Secretary has refused since 1968, to honor plaintiffs’ repeated requests to enforce this statute with respect to dairy products imported from nations comprising the European Economic Community which pay their exporters direct export subsidies to offset American import duties. As a result, plaintiffs claim they are subjected to unfair competition and injury when foreign exporters are granted subsidies for the express purpose of disposing of dairy products in the United States market. Although jurisdiction has been claimed under 28 U.S.C. §§ 1331, 1332 and 1361, original jurisdiction in the district courts involving customs matters must first be established under 28 U.S.C. § 1340. That section provides: “The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for . . . revenue from imports or tonnage except matters within the jurisdiction of the Customs Court. (Emphasis added.) Since § 1340 divests this Court of its jurisdiction if jurisdiction exists in the Customs Court, it is readily apparent that in order to avoid a statutory anomaly, § 1340 must be construed as the controlling jurisdictional grant regardless of whether jurisdiction appears appropriate under §§ 1331, 1332 or 1361. Jurisdiction in the Customs Court is governed by 28 U.S.C. § 1582 which gives that court “exclusive jurisdiction of civil actions instituted by any person whose protest pursuant to the Tariff Act of 1930, as amended, has been denied, in whole or part. . . . ” Protests by American manufacturers pursuant to the Tariff Act of 1930, are governed by 19 U.S.C. § 1516 which permits the filing of protests by American manufacturers who are dissatisfied with the Secretary’s determination of an appraised value, classification, or rate of duty for a" } ]

[ { "docid": "14137940", "title": "", "text": "44 L.Ed.2d 450 (1975) (organization’s authority to make final decisions is indicative of government-controlled, FOIA agency status, although “each arrangement must be examined anew and in its own context”). Plaintiffs generally insist that because FOIA’s section 552(e) is narrower than the Privacy Act in the sense that it does not apply to state and local agencies, the precedential value of the FOIA cases is diminished. Pit. Reply Brief at 2. Indeed, while the FOIA cases are certainly relevant given the Privacy Act’s cross-reference to 552(e), the case law focuses on federal, FOIA scenarios rather than on factors relevant to identification of covered state and local agencies. Plaintiffs’ argument holds as a general matter of interpretation, but it is in some sense academic. Plaintiffs cannot and do not dispute that the relevant inquiry is the nature and extent of government control of and involvement in Rutgers’ operations. While distancing themselves from the defendants’ FOIA cases, plaintiffs agree that government control is the relevant inquiry and suggest that the same type of factors or criteria at issue in the FOIA cases are relevant. Extrapolating from Rocap v. Indiek, 539 F.2d 174 (D.C.Cir.1976), plaintiffs propose the following indicia of government agency status: (1) government charter; (2) government appointment of Directors; (3) close governmental supervision over business transactions; (4) government audit and reporting requirements; (5) express designation as an agency; (6) employees are considered public for a number of purposes; and (7) regulatory powers to make regulations and to carry out its functions. Pit. Reply Brief at 5. The parties and the court agreeing that the relevant inquiry is government control over and involvement in Rutgers’ operations, the court turns to a fact-specific assessment of Rutgers’ status as a government controlled corporation under the Privacy Act. Defendants stress the relevancy of Kovats v. Rutgers, the State University, 822 F.2d 1303 (3d Cir.1987) to this inquiry. In Kovats, the Third Circuit held that Rutgers was not a division of the State for purposes of receiving Eleventh Amendment immunity. In arriving at this conclusion, the court engaged in an extensive, particularized inquiry into Rutgers specific links" } ]

[ { "docid": "10441693", "title": "", "text": "Executive Office of the President, the APA conferred agency status on any administrative unit with substantial independent authority in the exercise of specific functions. Id. at 1073. Applying that reasoning, we held that the OST was an agency under FOIA. Id. at 1075. We .concluded that if the OST’s “sole function” were limited to advising and assisting the President, the OST would not be an agency. Id. However, the OST also possessed the independent function of evaluating federal programs, which- gave the entity agency status. In another case decided prior to the 1974 FOIA amendments, however, we determined the agency status of specific entities existing outside the Executive Office of the President, called initial review groups (“IRGs”). Washington Research Project, Inc. v. Department of Health, Education, and Welfare, 504 F.2d 238 (D.C.Cir.1974). These groups evaluated research proposals sponsored by the National Institute of Mental Health, and were comprised of nongovernmental consultants who functioned in panels organized around specialized disciplines within the field of biomed-icine. Because these entities existed outside the Executive Office of the President, we did not apply Soucie’s sole function test. Nevertheless, we still employed a functionalist framework, holding that the important Consideration regarding agency status was whether the relevant entity had “any authority in law to make decisions.” Id. at 248. As the IRGs made only recommendations, not final decisions, we found them not to be agencies. Subsequent to the 1974 amendments, we have had the opportunity to return to this issue. In Rocap v. Indiek, we held that the Federal Home Loan Mortgage Company (“FHMLC”) was a governmental controlled corporation under FOIA’s definition of agency. 539 F.2d 174, 180 (D.C.Cir.1976). While we noted that the presence of a federal charter was not dispositive regarding whether the FHMLC was a government controlled corporation, the FHMLC was “subject to such substantial.federal control over its day-to-day operations” that it fell under FOIA. Id. at 177. We rejected the FHMLC’s argument that an entity had to receive federal funds to be an agency because several agencies exist under the Act receiving no appropriated funds. Likewise, we dismissed the FHMLC’s contention" }, { "docid": "20783510", "title": "", "text": "§ 1452(f) provides that the corporation “shall be deemed to be an agency included in sections 1345 and 1442 of ... Title 28”. Those sections of the judicial code grant federal district courts original jurisdiction over suits “commenced ... by any agency”, 28 U.S.C. § 1345, and removal jurisdiction over suits “commenced in a State court against any ... officer of the United States or any agency thereof’, 28 U.S.C. § 1442. The fact that Congress felt it necessary to provide in Freddie Mac’s governing statute that the corporation shall be deemed an agency under those provisions — “Notwithstanding section 1349 of Title 28”, 12 U.S.C. § 1452(f), which provides that mere federal incorporation shall not confer federal jurisdiction — demonstrates that Congress did not believe that Freddie Mac was an “agency”, at least for Title 28 purposes. Further, federal jurisdiction for suits for or against the corporation is only one factor to be considered in determining the governmental purposes and control of a federally chartered corporation. Two cases cited by ABM in support of finding Freddie Mac a governmental entity are not relevant because both were decided before FIRREA restructured Freddie Mac and neither squarely addressed whether Freddie Mac was subject to constitutional provisions such as the Fifth Amendment. Rocap v. Indiek, 539 F.2d 174, 176 (D.C.Cir.1976) (Freddie Mac was a “Government controlled corporation” under 5 U.S.C. § 552(e) and subject to FOIA because corporation’s board “is composed of the three members of the Federal Home Loan Bank Board ... and its capital stock is non-voting and held solely by the twelve Federal Home Loan Banks”); McCauley v. Thygerson, 732 F.2d 978, 982 (D.C.Cir.1984) (Freddie Mac’s status for purpose of employment relations “ultimately turnfed] ... on functional considerations of the effect that application of broad notions of promissory estoppel would have in light of the congressional intent expressed in FHLMC’s enabling act”). Even the Seventh Circuit’s opinion in Mendrala is of little relevance, since its findings that Freddie Mac both was and was not a federal agency or instrumentality were expressly confined to the particular contexts of the Federal" }, { "docid": "10998082", "title": "", "text": "BRH rendered him a governmental employee or official, the terms of § 552a simply do not apply to individuals. Windsor v. The Tennessean, 719 F.2d 155 (6th Cir.1983) reh. denied (1984); Bruce v. United States, 621 F.2d 914, 916 n. 2 (8th Cir.1980); Parks v. United States Internal Revenue Service, 618 F.2d 677 (10th Cir.1980). Had Congress the intent to subject individuals to the civil remedies provided in Privacy Act it certainly had the wherewithal to do so, as it did choose to subject individuals to criminal penalties provided in 5 U.S.C. § 552a(i). See Windsor, supra, n. 5 at 160. We do not see the Hospital or Medical School as reachable under the Privacy Act either. Regardless of what § 552(e) label Dennie could place on these defendants, he has not made the threshold showing of substantial federal control or supervision necessary to characterize an entity as “federal” for these purposes. See Forsham v. Harris, 445 U.S. 169, 180-81, 100 S.Ct. 977, 63 L.Ed.2d 293 (1980); Irwin Memorial Blood Bank v. American National Red Cross, 640 F.2d 1051, 1054-55 (9th Cir.1981); Rocap v. Indiek, 539 F.2d 174, 177 (D.C.Cir.1976). While this federal control may be “manifested in various forms” and consists of a “confluence of several ‘federal’ characteristics,” Dennie has alleged no facts which make either defendant a federal agency. See Irwin, supra at 1055. Dennie does allege that both the Hospital and the Medical School were recipients of federal research grants from the BRH, and thus subject to federal supervision, but this in and of itself is not sufficient. In Forsham, supra the Supreme Court faced the issue of whether a university diabetes group which received all of its funding from the federal government was an agency subject to FOIA requirements. In holding that it was not, the Court plainly stated that “absent extensive, detailed and virtually day-to-day supervision,” the recipient of public funds does not become a federal instrumentality or an FOIA agency. Forsham, supra, at 180. As Dennie alleges no such comprehensive supervision, he cannot reach defendants on the sole basis of their being federal grantees." }, { "docid": "18920060", "title": "", "text": "was plainly a state agency, the plaintiffs argued that because it received federal funds through Medicaid “and Medicaid’s pervasive statutory and regulatory scheme necessarily subjected] the DHS” to the provisions of the FOIA. Id. at 1373. The court, however, concluded that DHS was not an “agency” within the meaning of FOIA. In so doing, it rejected plaintiffs’ argument that the use of federal funds pursuant to federal regulations transformed DHS into a federal agency: Federal funding reaches a countless number of activities of local and state governments. To assure that the federal funds are spent for the purposes for which they were intended, extensive federal regulations are promulgated and must be complied with. However, those regulations do not convert acts of local and state governmental bodies into federal governmental acts. Id. at 1373-74. Thus, because plaintiffs did not contend that the federal government exercised the “ ‘extensive, detailed and virtually day-to-day supervision’ over the program that is needed to characterize the state bodies as federal agencies,” the court affirmed the district court’s dismissal of the claim. Id., quoting Forsham v. Harris, 445 U.S. 169, 180, 100 S.Ct. 977, 984, 63 L.Ed.2d 293 (1980); see also Public Citizen Health Research Group v. Dept. of Health, Education and Welfare, 668 F.2d 537 (D.C.Cir.1981) (PSROs, privately incorporated organizations that used federal funds and operated pursuant to federal regulations, were not “agencies” within meaning of FOIA). The IHFA bears many similarities to the DHS. Both are creatures of state law. Both must meet certain statutory requirements set out by the federal government, but federal control over their functions is limited to oversight of federal funds. As Convalescent Hospital makes clear, however, the mere fact that an entity receives federal funds and is regulated to some extent by federal regulations does not bring it within the reaches of FOIA. The Court therefore finds that the IHFA does not fall within the purview of FOIA and, accordingly, plaintiffs’ motion to dismiss the federal FOIA claim is granted. E. This Court Lacks Subject Matter Jurisdiction over the Remaining State Law Claims. The Court’s jurisdiction over plaintiffs’ federal" }, { "docid": "10441694", "title": "", "text": "we did not apply Soucie’s sole function test. Nevertheless, we still employed a functionalist framework, holding that the important Consideration regarding agency status was whether the relevant entity had “any authority in law to make decisions.” Id. at 248. As the IRGs made only recommendations, not final decisions, we found them not to be agencies. Subsequent to the 1974 amendments, we have had the opportunity to return to this issue. In Rocap v. Indiek, we held that the Federal Home Loan Mortgage Company (“FHMLC”) was a governmental controlled corporation under FOIA’s definition of agency. 539 F.2d 174, 180 (D.C.Cir.1976). While we noted that the presence of a federal charter was not dispositive regarding whether the FHMLC was a government controlled corporation, the FHMLC was “subject to such substantial.federal control over its day-to-day operations” that it fell under FOIA. Id. at 177. We rejected the FHMLC’s argument that an entity had to receive federal funds to be an agency because several agencies exist under the Act receiving no appropriated funds. Likewise, we dismissed the FHMLC’s contention that Civil Service Commission jurisdiction is a prerequisite to agency status, as many recognized agencies fall outside such jurisdiction. Id. at 179. We have also had recent occasion to apply a functional approach to an entity not within the President’s Executive Office, the Defense Nuclear Facilities Safety Board, although the approach was not controlling in that decision. In Energy Research Found., we held that the Board was an agency under FOIA. 917 F.2d at 584-85. While specifically disclaiming reliance on Soucie’s sole function test becáuse the Board was not within the President’s Executive Office, we concluded that even under the Soucie test, the Board was an agency. The Board “eonduct[ed] investigations, which has long been recognized as an incident of legislative power delegated to agencies by Congress.” Id. at 584 (internal quotations omitted). The Board also formally evaluated the Energy Department’s standards relating to defense nuclear facilities. Plaintiff presents a litany of arguments in support of her position that the Smithsonian is an agency both as an independent establishment and a government controlled corporation. We" }, { "docid": "17044828", "title": "", "text": "Administration (CDA) disburses the funds from the federal agency to the Center pursuant to 42 U.S.C. § 2809(a) (4). CDA appointed the Catholic Medical Center, which then delegated St. Mary’s Hospital, to ensure that proper medical services were supplied, to audit the Center’s finances, and to supervise its operations if problems arose that were beyond the local organization’s ability to handle. The project is governed by Charles Drew Neighborhood Health Center, a board of thirty-four elected low-income neighborhood residents. I. The Fifth Amendment Claim. While plaintiff has described the considerable extent of federal involvement in community action programs in general, his claim under the Fifth Amendment must fail, because, as noted in our prior decision, 359 F.Supp. supra at 362, Johnson was never a federal employee and neither OEO nor HEW ever promulgated regulations regarding the termination of the project’s employees. See Robles v. El Paso Community Action Agency, 456 F.2d 189, 190-191 (5th Cir. 1972). Even though these agencies have the authority to establish such rules, their unexercised power falls short of providing the requisite degree of federal involvement. To justify a finding of federal action within the scope of the Fifth Amendment, OEO or HEW must have expressly undertaken regulation of the particular conduct under attack. Coleman v. Wagner College, 429 F.2d 1120, 1123-1124 (2d Cir. 1970). As the Court of Appeals stated: “ . . . the state [or federal government] must be involved not simply with some activity of the institution alleged to have inflicted injury upon the plaintiff but with the activity that caused the injury. Putting the point another way, the state action, not the private action, must be the subject of complaint.” Powe v. Miles, 407 F.2d 73, 81 (2d Cir. 1968). The record here establishes that OEO specifically declined to supervise employee grievances and delegated this responsibility in broadest terms to other participants in the statutory scheme. CA Memorandum 23-A, issued by the agency and dated August 26, 1966 (Exhibit G to Complaint) states: “Grantee and delegate agencies shall make provision for review of personnel actions by the governing body or a" }, { "docid": "18920059", "title": "", "text": "the entity is subject to extensive federal control. Dong v. Smithsonian Institution, 878 F.Supp. 244, 247 (D.D.C.1995). The application of these criteria in this ease demonstrates that the IHFA is not a federal agency as that term is used in FOIA. The IHFA is state, not federally, chartered. Most of its board of directors are appointed by Indiana’s governor; the rest are board members by virtue of their positions in state government. The Authority is subject to almost no federal supervision over its business transactions, the State having accorded it “all of the powers necessary or convenient to carry out and effectuate” its purpose. I.C. § 5-20-1-4. Indeed, at most, federal control over its functions is limited to the oversight of federal funds. In this respect, the case at bar is similar to St. Michael’s Convalescent Hosp. v. State of California, 643 F.2d 1369 (9th Cir.1981). In that case, the Ninth Circuit considered whether FOIA’s requirements applied to the California Department of Health Services (“DHS”), the agency responsible for administering California’s medicare program. Although DHS was plainly a state agency, the plaintiffs argued that because it received federal funds through Medicaid “and Medicaid’s pervasive statutory and regulatory scheme necessarily subjected] the DHS” to the provisions of the FOIA. Id. at 1373. The court, however, concluded that DHS was not an “agency” within the meaning of FOIA. In so doing, it rejected plaintiffs’ argument that the use of federal funds pursuant to federal regulations transformed DHS into a federal agency: Federal funding reaches a countless number of activities of local and state governments. To assure that the federal funds are spent for the purposes for which they were intended, extensive federal regulations are promulgated and must be complied with. However, those regulations do not convert acts of local and state governmental bodies into federal governmental acts. Id. at 1373-74. Thus, because plaintiffs did not contend that the federal government exercised the “ ‘extensive, detailed and virtually day-to-day supervision’ over the program that is needed to characterize the state bodies as federal agencies,” the court affirmed the district court’s dismissal of the" }, { "docid": "11987996", "title": "", "text": "Forsham v. Harris, 445 U.S. 169, 180 & n. 11, 100 S.Ct. 977, 68 L.Ed.2d 298 (1980) (explaining that “[b]efore characterizing an entity as ‘federal’ for some purpose, [there is] a threshold showing of substantial federal supervision of the private activities, and not just the exercise of regulatory authority necessary to assure compliance with the goals of the federal grant,” because receipt of federal funds does not “convert private acts to governmental acts absent extensive, detailed, and virtually day-to-day supervision”); Ehm v. Nat’l R.R. Passenger Corp., 732 F.2d 1250, 1255 (5th Cir.1984) (finding, in part, because “Amtrak’s day-to-day operations are not subject to close government supervision,” Amtrak was not a government controlled corporation even though the federal government appoints six members of its board of directors and Amtrak is financially accountable to the government); Irwin Mem’l Blood Bank, 640 F.2d at 1056-57 (holding that the Red Cross is not a “Government controlled corporation” in part because “government officials do not direct the everyday affairs of the Red Cross”). Accordingly, we find that the District Court did not err in dismissing Burch’s Complaint for failure to state a claim. Burch’s second and third claims can be dealt with summarily, as they do not raise new issues for this Court. Burch maintains that the District Court erred in refusing to allow him to conduct discovery to defend against Pioneer’s Rule 12(b)(6) motion. Burch has not put forth any plausible reason for us to believe that the District Court abused its “broad discretion to direct and manage the pre-trial discovery process,” Wills v. Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir.2004), and we decline to second-guess its decision. Lastly, Burch argues that the District Court should have allowed him to amend his Complaint in response to Pioneer’s motion to dismiss, a ruling that we also review for abuse of discretion. See Jones v. N.Y. State Div. of Military & Naval Affairs, 166 F.3d 45, 49 (2d Cir.1999). While Federal Rule of Civil Procedure 15(a) states that leave to amend should be granted “when justice so requires,” motions to amend should generally be" }, { "docid": "18920058", "title": "", "text": "controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent agency. The reference to § 551® is to the Administrative Procedure Act’s definition of agency, which includes “each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include” Congress, the judiciary and a few other select bodies. 5 U.S.C. § 551®. In determining whether an entity meets the agency definition under FOIA, courts have “generally employed a fact-specific functional approach.” Cotton v. Heyman, 63 F.3d 1115, 1121 (D.C.Cir.1995). Indeed, “[a]ny general definition can be of only limited utility to a court confronted with one of the myriad organizational arrangements for getting the business of the government done.” Washington Research Project, Inc. v. Department of Health, Educ. and Welfare, 504 F.2d 238, 245-46 (D.C.Cir.1974). Nevertheless, two factors are often described as relevant to the determination of agency status: (1) whether the entity has independent decisional authority, and (2) whether the entity is subject to extensive federal control. Dong v. Smithsonian Institution, 878 F.Supp. 244, 247 (D.D.C.1995). The application of these criteria in this ease demonstrates that the IHFA is not a federal agency as that term is used in FOIA. The IHFA is state, not federally, chartered. Most of its board of directors are appointed by Indiana’s governor; the rest are board members by virtue of their positions in state government. The Authority is subject to almost no federal supervision over its business transactions, the State having accorded it “all of the powers necessary or convenient to carry out and effectuate” its purpose. I.C. § 5-20-1-4. Indeed, at most, federal control over its functions is limited to the oversight of federal funds. In this respect, the case at bar is similar to St. Michael’s Convalescent Hosp. v. State of California, 643 F.2d 1369 (9th Cir.1981). In that case, the Ninth Circuit considered whether FOIA’s requirements applied to the California Department of Health Services (“DHS”), the agency responsible for administering California’s medicare program. Although DHS" }, { "docid": "12462531", "title": "", "text": "to secure such information from possibly unwilling official hands.” Environmental Protection Agency v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). The Corporation’s “openness” therefore cannot relieve it from its obligation to publish and index those materials required by the Freedom of Information Act. IV. CONCLUSION The organizational structure of the Corporation exhibits many characteristics similar to those of other governmental entities subject to the Freedom of Information Act. It is federally chartered, its Board of Directors is Presidentially appointed, it is subject to close governmental supervision and control over its business transactions, and to federal audit and reporting requirements. In addition, the Corporation is expressly designated an “agency,” and its employees are officers and employees of the United States, for a number of purposes. Like other agencies, it is empowered “to make and enforce such bylaws, rules, and regulations as may be necessary or appropriate to carry out the purposes or provisions of [its enabling act].” 12 U.S.C. § 1452(b)(3). The existence of any one of these characteristics, by itself, would not be sufficient to trigger applicability of section 552(e), but these are the kinds of indicia of federal involvement and control which courts have generally relied upon in determining whether an entity is a federal agency. Taken together, we believe that the Corporation s federal characteristics dictate the conclusion that it is the kind of federally created and controlled entity which Congress sought to bring within the scope of the “Government controlled corporation” language of 5 U.S.C. § 552(e). For the above reasons, we conclude that appellant Federal Home Loan Mortgage Corporation is an “agency” for the purposes of the Freedom of Information Act. The order of the district court is hereby affirmed. So ordered. . In general terms, section 552(a)(1) requires any federal “agency” to publish in the Federal Register general descriptions of its organization, decisional procedures, substantive rules and policy. Section 552(a)(2) requires the agency to make available for public inspection and copying its opinions, statements of policy, interpretations, administrative staff manuals and instructions. . Rocap alleged in his Complaint that," }, { "docid": "19717430", "title": "", "text": "characteristics similar to those of other governmental entities subject to the Freedom of Information Act. It is federally chartered, its Board of Directors is Presidentially appointed, it is subject to close governmental supervision and control over its business transactions, and to federal control over its business transactions, and to federal audit and reporting requirements. In addition, the Corporation is expressly designated as an “agency,” and its employees are officers and employees of the United States, for a number of purposes. Like other agencies, it is empowered “to make and enforce such bylaws, rules, and regulations as may be necessary or appropriate to carry out the purposes of [its enabling act.]” (citation omitted). Rocap v. Indiek, 539 F.2d at 176. Under Rocap and its progeny, it is unnecessary to determine whether the Smithsonian is a government controlled corporation, a government corporation, or some other kind of establishment in the executive branch of the government because “regardless of its label,” it is the “threshold showing of substantial federal control or supervision” that “is required before an entity can be characterized as ‘federal’”. Irwin Memorial v. American National Red Cross, 640 F.2d 1051, 1054-55 (9th Cir.1981). Applying these standards on a case-by-case basis, the Court of Appeals for our Circuit has concluded that FOIA’s definition of “agency” applies to a broad range of entities. For example, the court concluded that the Office of Science and Technology, the Defense Nuclear Facilities Safety Board, the Council on Environmental Quality, the Office of Personnel Management, and even the Federal Home Loan Mortgage Corporation all constitute FOIA agencies. Conversely, for reasons that do not apply here, the court determined that the Council of Economic Advisors the National Capital Medical Foundation, Inc. (serving as a Professional Standards Review Organization), and the Task Force on Regulatory Relief are not FOIA agencies, Ultimately the Court of Appeals for our Circuit has concluded that, with the “ ‘myriad organizational arrangements for getting the business of the government done’”, “‘any general definition [of the term agency] can be of only limited utility'” and, consequently, “ ‘the unavoidable fact is that each new" }, { "docid": "15090670", "title": "", "text": "F.2d 946 (7th Cir.1966). Plaintiff also argued that Amtrak violated his fifth amendment due process rights in terminating his employment. According to plaintiff, Amtrak’s actions constitute governmental action for due process purposes because of the government’s “total and pervasive control” over Amtrak. Amtrak is intertwined with the government to a certain extent. Amtrak was established by an act of Congress, 45 U.S.C. § 541, and the federal government is represented on Amtrak’s nine-member board by six members who can control the appointment of a seventh member, the president of the corporation. 45 U.S.C. § 543. Amtrak is defined as a “mixed ownership Government corporation” and, therefore, must comply with federal audit and reporting requirements. 31 U.S.C. §§ 9101(2)(A), 9105(a)(1)(B). Congress, however, explicitly declared that Amtrak is not a governmental agency or establishment. Rather, Amtrak is a for-profit corporation chartered under the District of Columbia Business Corporation Act. 45 U.S.C. § 541. In addition, Amtrak is striving to minimize federal subsidies. 45 U.S.C. § 501a(l) & (14). Amtrak’s daily operation is not subject to close government supervision; nor are Amtrak’s daily affairs conducted by federal employees. Ehm v. National Railroad Passenger Corp., 732 F.2d 1250 (5th Cir.1984). The ties between Amtrak and the federal government do not warrant a finding of governmental action for purposes of the fifth amendment. The Supreme Court considered an argument similar to plaintiff’s in Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). In Blum, the plaintiff contended that the state was a joint participant in a nursing home’s activities because the state subsidized the operating and capital costs of the nursing home, paid 90% of patient medical expenses, and licensed the nursing home. There was no state action because the court was unable to find a nexus between the challenged actions of the defendant and the state’s regulation and subsidization. Id. at 1010-11, 102 S.Ct. at 2789. This requirement of a nexus between the state and the challenged activity of the regulated entity is based upon considerations of fairness so as “to assure that constitutional standards are invoked only when it" }, { "docid": "10998083", "title": "", "text": "Cross, 640 F.2d 1051, 1054-55 (9th Cir.1981); Rocap v. Indiek, 539 F.2d 174, 177 (D.C.Cir.1976). While this federal control may be “manifested in various forms” and consists of a “confluence of several ‘federal’ characteristics,” Dennie has alleged no facts which make either defendant a federal agency. See Irwin, supra at 1055. Dennie does allege that both the Hospital and the Medical School were recipients of federal research grants from the BRH, and thus subject to federal supervision, but this in and of itself is not sufficient. In Forsham, supra the Supreme Court faced the issue of whether a university diabetes group which received all of its funding from the federal government was an agency subject to FOIA requirements. In holding that it was not, the Court plainly stated that “absent extensive, detailed and virtually day-to-day supervision,” the recipient of public funds does not become a federal instrumentality or an FOIA agency. Forsham, supra, at 180. As Dennie alleges no such comprehensive supervision, he cannot reach defendants on the sole basis of their being federal grantees. The Irwin, supra, court sets out several other factors to consider in determining whether an organization is a federal agency under § 552(e). The dispute there focused on a blood bank’s attempts to order the Red Cross to disclose financial records through the FOIA. In holding that the Red Cross was not a federal agency for FOIA purposes, the court looked to: 1) whether the federal government played a role in organizing the institution; 2) whether the United States particularly appropriated funds for the benefit of the institution; and 3) whether governmental officials directed the daily affairs of the institution. While recognizing that the Red Cross was subject to a certain amount of federal supervision, the Court found in the negative as to all the forementioned considerations and held the Red Cross not to be subject to the FOIA. Applying the Irwin criteria to the matter sub judice, we cannot help but conclude that there is no substantial federal supervision and control over the Hospital and Medical School, and thus, they are not federal agencies." }, { "docid": "20783511", "title": "", "text": "finding Freddie Mac a governmental entity are not relevant because both were decided before FIRREA restructured Freddie Mac and neither squarely addressed whether Freddie Mac was subject to constitutional provisions such as the Fifth Amendment. Rocap v. Indiek, 539 F.2d 174, 176 (D.C.Cir.1976) (Freddie Mac was a “Government controlled corporation” under 5 U.S.C. § 552(e) and subject to FOIA because corporation’s board “is composed of the three members of the Federal Home Loan Bank Board ... and its capital stock is non-voting and held solely by the twelve Federal Home Loan Banks”); McCauley v. Thygerson, 732 F.2d 978, 982 (D.C.Cir.1984) (Freddie Mac’s status for purpose of employment relations “ultimately turnfed] ... on functional considerations of the effect that application of broad notions of promissory estoppel would have in light of the congressional intent expressed in FHLMC’s enabling act”). Even the Seventh Circuit’s opinion in Mendrala is of little relevance, since its findings that Freddie Mac both was and was not a federal agency or instrumentality were expressly confined to the particular contexts of the Federal Tort Claims Act and the Merrill doctrine, respectively. Moreover, two district courts, in addition to the one that decided this case, have expressly found that Freddie Mac’s termination of a seller/servicer was not subject to the Fifth Amendment. Liberty Mortgage Banking, Ltd. v. Federal Home Loan Mortgage Corp., 822 F.Supp. 956, 958-60 (E.D.N.Y.1993) (Freddie Mac was private corporation rather than government agency; decision to terminate plaintiff as seller/servieer could not be deemed government action); FBMC Fin., Inc. v. Federal Home Loan Mortgage Corp., No. 91 cv. 1226-R (S.D.Cal.Sept. 26, 1991) (discussed in Liberty Mortgage, 822 F.Supp. at 960). In addition, two other circuits have held that the Federal National Mortgage Association (“Fannie Mae”) is not subject to the Fifth Amendment Due Process Clause. Northrip v. Federal National Mortgage Ass'n, 527 F.2d 23, 30 (6th Cir.1975) (corporation was federally chartered and regulated but stock traded on New York Stock Exchange and only 5 of 15 directors were appointed by President); Roberts v. Cameron-Brown Co., 556 F.2d 356, 359 (5th Cir.1977) (relying on Northrip and holding that" }, { "docid": "23268901", "title": "", "text": "F.2d 749, 752 (7th Cir.1983). Aerospace is a private not-for-profit corporation which does business with the United States Government. It is not an agency of the government within the definition of the Privacy Act. Nor does the mere fact that Aerospace receives funding and is regulated to some extent by the federal government bring it within the reaches of the Act. In St. Michael’s Convalescent Hospital, we held that federal regulation of state agencies administering the Medicaid program in California did not subject those agencies to the provisions of the Privacy Act, stating that: Federal funding reaches a countless number of activities of local and state governments. To assure that the federal funds are spent for the purposes for which they were intended, extensive federal regulations are promulgated and must be complied with. However, those regulations do not convert acts of local and state governmental bodies into federal governmental acts. United States v. Orleans, 425 U.S. 807, 816, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390 (1976); Forsham v. Harris, 445 U.S. 169, 100 S.Ct. 977, 63 L.Ed.2d 293 (1980). “[Ejxtensive, detailed and virtually day-to-day supervision” by the federal government is needed before “agency” status could be said to attach. 643 F.2d at 1373-74 (citations omitted). Even though Medi-Cal, the Medicaid program in California, received federal financial support and was highly regulated by the federal government, we concluded that the government did not exercise extensive supervision and control over the program sufficient to characterize the administrative bodies as federal agencies under the Privacy Act. See Irwin Memorial Blood Bank, 640 F.2d at 1057-58 (American National Red Cross, though a close ally of the United States, is not an “agency” for purposes of the Freedom of Information Act because its operations are not subject to substantial control or supervision). Similarly here, appellant has failed to demonstrate that the federal government’s control over Aerospace, a private corporation, is sufficiently pervasive to confer governmental agency status upon it. Appellant also contends that Aerospace violated § 552a(i)(3) of the Privacy Act, which provides: Any person who knowingly and willfully requests or obtains any record concerning" }, { "docid": "19717429", "title": "", "text": "with substantial independent authority in the exercise of specific functions.” 448 F.2d 1067, 1073 (D.C.Cir. 1971); see also Meyer v. Bush, 981 F.2d 1288, 1292 (D.C.Cir.1993). In a different case more factually similar to this one, the D.C. Circuit emphasized the second of the two factors, and consequently found the Federal Home Loan Mortgage Corporation (“the Corporation”), to be an “agency” subject to the Privacy Act. Rocap v. Indiek, 539 F.2d 174, 176-77 (D.C.Cir. 1976). In holding that FOIA’s definition of agency applied to “hybrid governmental/private entities”, the Rocap Court found it compelling that, not only did the Corporation have a Federal Charter, but also was subject to “substantial federal control over its day-today operations.” Id. at 177. In the situation of a hybrid governmental/private entity, the court concluded, the proper inquiry to be made in determining if an entity constitutes an agency under FOIA and the Privacy Act is the amount of federal control. In making this determination, the Rocap Court engaged in the following analysis: The organizational structure of the Corporation exhibits many characteristics similar to those of other governmental entities subject to the Freedom of Information Act. It is federally chartered, its Board of Directors is Presidentially appointed, it is subject to close governmental supervision and control over its business transactions, and to federal control over its business transactions, and to federal audit and reporting requirements. In addition, the Corporation is expressly designated as an “agency,” and its employees are officers and employees of the United States, for a number of purposes. Like other agencies, it is empowered “to make and enforce such bylaws, rules, and regulations as may be necessary or appropriate to carry out the purposes of [its enabling act.]” (citation omitted). Rocap v. Indiek, 539 F.2d at 176. Under Rocap and its progeny, it is unnecessary to determine whether the Smithsonian is a government controlled corporation, a government corporation, or some other kind of establishment in the executive branch of the government because “regardless of its label,” it is the “threshold showing of substantial federal control or supervision” that “is required before an entity" }, { "docid": "20783512", "title": "", "text": "Tort Claims Act and the Merrill doctrine, respectively. Moreover, two district courts, in addition to the one that decided this case, have expressly found that Freddie Mac’s termination of a seller/servicer was not subject to the Fifth Amendment. Liberty Mortgage Banking, Ltd. v. Federal Home Loan Mortgage Corp., 822 F.Supp. 956, 958-60 (E.D.N.Y.1993) (Freddie Mac was private corporation rather than government agency; decision to terminate plaintiff as seller/servieer could not be deemed government action); FBMC Fin., Inc. v. Federal Home Loan Mortgage Corp., No. 91 cv. 1226-R (S.D.Cal.Sept. 26, 1991) (discussed in Liberty Mortgage, 822 F.Supp. at 960). In addition, two other circuits have held that the Federal National Mortgage Association (“Fannie Mae”) is not subject to the Fifth Amendment Due Process Clause. Northrip v. Federal National Mortgage Ass'n, 527 F.2d 23, 30 (6th Cir.1975) (corporation was federally chartered and regulated but stock traded on New York Stock Exchange and only 5 of 15 directors were appointed by President); Roberts v. Cameron-Brown Co., 556 F.2d 356, 359 (5th Cir.1977) (relying on Northrip and holding that FNMA’s activities did not qualify as governmental action). While Freddie Mac is chartered to pursue federal governmental objectives, the level of government control over the corporation is so much lower than that exercised over Amtrak we conclude that, upon an application of Lebrón principles, that Freddie Mac is not a government agency subject to the Fifth Amendment’s Due Process Clause. B. Freddie Mae’s Actions Did Not Constitute Federal Action for Constitutional Purposes ABM argues that even if Freddie Mac is not a governmental entity, its actions in terminating appellants as seller/servicers should be subject to the requirements of the Fifth Amendment’s Due Process Clause because the terminations were federal action. “The standards utilized to find federal action for purposes of the Fifth Amendment are identical to those employed to detect state action subject to the strictures of the Fourteenth Amendment.” Geneva Towers Tenants Org. v. Federated Mortgage Investors, 504 F.2d 483, 487 (9th Cir.1974). Because the Court’s consideration of the state action question in San Francisco Arts & Athletics, Inc. v. United States Olympic Committee," }, { "docid": "19717428", "title": "", "text": "of numerous entities, they have not developed any uniform test for making such a determination. See, generally, Richard P. Shafer, Annotation: The Meaning of the Term “Agency” for Purposes of the Freedom of Information Act, 57 AL.R.Fed. 295 (1994). Some courts, however, have enunciated that two factors are relevant to the determination of agency status: (1) whether the entity has “independent decisional authority”, and (2) whether the entity is subject to “day-to-day federal control”. Public Citizen Health Research Group v. Department of Health, Education and Welfare, 668 F.2d 537, 541 (D.C.Cir.1981), citing Washington Research Project, Inc. v. HEW, 504 F.2d 238 (D.C.Cir.1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975). In some cases, the Court of Appeals for the D.C. Circuit has focused primarily on the first of the two factors above, and engaged in a “functional analysis”. For example, in Soucie v. David, the court conceded that the APA’s statutory definition of “agency” is not “entirely clear,” but concluded that the APA “apparently confers agency status on any administrative unit with substantial independent authority in the exercise of specific functions.” 448 F.2d 1067, 1073 (D.C.Cir. 1971); see also Meyer v. Bush, 981 F.2d 1288, 1292 (D.C.Cir.1993). In a different case more factually similar to this one, the D.C. Circuit emphasized the second of the two factors, and consequently found the Federal Home Loan Mortgage Corporation (“the Corporation”), to be an “agency” subject to the Privacy Act. Rocap v. Indiek, 539 F.2d 174, 176-77 (D.C.Cir. 1976). In holding that FOIA’s definition of agency applied to “hybrid governmental/private entities”, the Rocap Court found it compelling that, not only did the Corporation have a Federal Charter, but also was subject to “substantial federal control over its day-today operations.” Id. at 177. In the situation of a hybrid governmental/private entity, the court concluded, the proper inquiry to be made in determining if an entity constitutes an agency under FOIA and the Privacy Act is the amount of federal control. In making this determination, the Rocap Court engaged in the following analysis: The organizational structure of the Corporation exhibits many" }, { "docid": "14137939", "title": "", "text": "any further indication of how state and local “agencies” are to be identified. Thus, most of the case law which interprets the scope of sections 552a, 552(e), and 551(1) does not differentiate between the potentially varied considerations of what constitutes a state or local “agency.” Defendants rely heavily on the FOIA and APA case law to support their argument that “[t]he Privacy Act requires a threshold showing of substantial governmental control or supervision over the day-to-day operations of an organization to result in ‘agency’ classification.” Def. Brief at 12-13. See Def. Brief at 14-18. Defendants are correct; the FOIA cases focus on ultimate government control. An entity has FOIA or Privacy Act agency status if the government is involved in and/or has authority over decisions affecting the ongoing, daily operations of the entity. See Rocap v. Indiek, 539 F.2d 174, 177 (D.C.Cir.1976) (FHLMC is a FOIA agency based on substantial federal control over day-to-day operations); Washington Research Project, Inc. v. HEW, 504 F.2d 238, 248, 245-46 (D.C.Cir.1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975) (organization’s authority to make final decisions is indicative of government-controlled, FOIA agency status, although “each arrangement must be examined anew and in its own context”). Plaintiffs generally insist that because FOIA’s section 552(e) is narrower than the Privacy Act in the sense that it does not apply to state and local agencies, the precedential value of the FOIA cases is diminished. Pit. Reply Brief at 2. Indeed, while the FOIA cases are certainly relevant given the Privacy Act’s cross-reference to 552(e), the case law focuses on federal, FOIA scenarios rather than on factors relevant to identification of covered state and local agencies. Plaintiffs’ argument holds as a general matter of interpretation, but it is in some sense academic. Plaintiffs cannot and do not dispute that the relevant inquiry is the nature and extent of government control of and involvement in Rutgers’ operations. While distancing themselves from the defendants’ FOIA cases, plaintiffs agree that government control is the relevant inquiry and suggest that the same type of factors or criteria at issue" }, { "docid": "7557433", "title": "", "text": "affirm the District Court’s decision to dismiss McCauley’s promissory estoppel claim. The Due- Process Claim. McCauley’s due process argument is without merit. Having found that McCauley had no expectation of continued employment absent “cause” for dismissal, we are compelled to conclude that McCauley has not asserted any property interest that the Constitution’s due process guarantee protects. Arnett v. Kennedy, 416 U.S. 134, 152, 94 S.Ct. 1633, 1643, 40 L.Ed.2d 15 (1974). We note that our disposition of this issue differs from that of the District Court, which found that the post-termination process afforded McCauley satisfied constitutional requirements. Because we find that McCauley has asserted no property or liberty interest that the Constitution protects, we express no opinion on whether the process afforded McCauley in this case might have been sufficient had he asserted an interest that the Constitution protects. III. Conclusion The District Court properly dismissed McCauley’s complaint on the ground that his breach of contract claim could not be brought against FHLMC and his due process claim was without merit. Affirmed. FHLMC was created by Congress, is owned by the federal home loan banks, themselves federal instrumentalities, 12 U.S.C. § 1453(a), and is controlled by the Federal Home Loan Bank Board, a federal agency. 12 U.S.C. § 1452(a); id. § 1437. See Rocap v. Indiek, 539 F.2d 174, 177 (D.C.Cir.1976) (finding FHLMC a federal entity for purposes of Freedom of Information Act, based on finding of “substantial federal control over its day-to-day operations”). Congress delegated to FHLMC the power to promulgate regulations necessary to carry out its statutory mandate as a public financial intermediary between mortgage originators and capital mar kets. Congress also exempted FHLMC from all state and federal taxation. 12 U.S.C. § 1452(d). More importantly, Congress appears to have intended to create FHLMC as an entity subject to the employment regulations governing federal entities for most purposes. FHLMC is a “government corporation,\" 5 U.S.C. § 103 (1982), which id. § 105 defines as an \"Executive agency” for federal employment purposes. By virtue of its inclusion in § 105, FHLMC is subject to the nondiscrimination and affirmative action" } ]

[ { "docid": "23113497", "title": "", "text": "the prosecutor’s references to the defendants’ failure to testify and their improper questioning of various law enforcement officials constitute serious misconduct, we must now determine whether those tactics east serious doubt upon the correctness of the jury’s verdict. Otherwise, the errors are harmless and do not justify reversal. United States v. Palmer, 37 F.3d 1080, 1085 (5th Cir.1994), cert. denied, 514 U.S. 1087, 115 S.Ct. 1804, 131 L.Ed.2d 730 (1995). In examining the effect of the prosecutors’ impermissible comments, we consider three factors: “the magnitude of the prejudicial effect of the remark, the efficacy of any cautionary instruction, and the strength of the evidence of the defendant’s guilt.” United States v. Bermea, 30 F.3d 1539, 1563 (5th Cir.1994), cert. denied sub. nom., 513 U.S. 1156, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995). The prejudicial effect of the comment and gesture during Gatterson’s testimony was slight. The question was asked during the second week of a trial that lasted twenty-nine (29) days extending over a period of approxi mately eight weeks. The prejudice was also lessened because the question was asked during the government’s case-in-ehief. At that time the jury did not know that the defendants would not testify and would therefore be less inclined to construe the question as a comment on the defendants’ silence. The judge’s timely and thorough jury instruction further mitigated the effect of that improper comment. The prosecutor’s comment during closing argument was more prejudicial. It was a direct comment on defendants’ failure to testify, and it occurred only one day before the jury began deliberations. The prejudice was mitigated somewhat by the trial judge’s instruction prior to the commencement of jury deliberations that: The law does not require a defendant to prove his innocence or to produce any evidence at all and no inference whatever may be drawn from the election of a defendant not to testify. Yesterday morning when [the prosecutor] was giving — going over some of the instructions, she expected that I would give and remarked on one of these passages and [defense counsel] moved for a mistrial and I denied that" } ]

[ { "docid": "9842528", "title": "", "text": "the defendant’s right under the Fifth Amendment to a grand jury indictment.”). Stated another way, Hoover argues that while the indictment required the government to prove that he knew his statement was false because “more than one individual told him about the double flooring,” the court’s jury instruction allowed the government to obtain a conviction if it proved he knew his statement was false even if he knew it for some reason other than that more than one individual had told him about the double flooring of vehicles. Because Hoover objected at trial, we review the court’s jury instructions for an abuse of discretion. See United States v. Pankhurst, 118 F.3d 345, 350 (5th Cir. 1997). “The Fifth Amendment provides for criminal prosecution only on the basis of a grand jury indictment.” United States v. Doucet, 994 F.2d 169, 172 (5th Cir. 1993); see U.S. Const, amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury .... ”). “It is a long-established principle of our criminal justice system that, after an indictment has been returned, its charges may not be broadened through amendment except by the grand jury itself.” United States v. Young, 730 F.2d 221, 223 (5th Cir. 1984). This court has held that “[a]n implicit or constructive amendment ... occurs when it permits the defendant to be convicted upon a factual basis that effectively modifies an essential element of the offense charged or permits the government to convict the defendant on a materially different theory or set of facts than that with which she was charged.” United States v. Reasor, 418 F.3d 466, 475 (5th Cir. 2005). This court has addressed constructive amendment issues on numerous occasions. See, e.g., United States v. Chambers, 408 F.3d 237, 247 (5th Cir. 2005) (reversing a conviction for being a felon in possession of ammunition, where the indictment charged possession of whole ammunition “in or affecting commerce” and the jury was allowed to convict based on the travel of component parts, rather than the whole, of" }, { "docid": "7179599", "title": "", "text": "849 (1887); United States v. Young, 730 F.2d 221, 223 (5th Cir.1984). Such amendments need not be explicit. An implied or constructive amendment also constitutes reversible error. Stirone, 361 U.S. at 217-18, 80 S.Ct. at 273-74, Young, 730 F.2d at 223. Constructive amendments are reversible per se, as contrasted with varianc es between the indictment and proof that are evaluated under the harmless error doctrine. See Stirone, 361 U.S. at 217-18, 80 S.Ct. at 273-74; Young, 730 F.2d at 223. “The accepted test is that a constructive amendment of the indictment occurs when the jury is permitted to convict the defendant upon a factual basis that effectively modifies an essential element of the crime charged.” Young, 730 F.2d at 223 (citations omitted). The question we must decide is: was the jury permitted to convict the defendant upon a “set of facts distinctly different from that set forth in the indictment”? Id. at 223 (citations omitted). See also Stirone, 361 U.S. at 217-18, 80 S.Ct. at 273-74. In Stirone, the defendant was indicted for a Hobbs Act violation for obstructing an interstate shipment of sand. The evidence adduced and the instructions to the jury, however, allowed the jury to base a guilty verdict on a finding that the defendant had interferred with a shipment of steel. The Court held: [Tjhere are two essential elements of a Hobbs Act crime: interference with commerce, and extortion.... The charges that interstate commerce is affected is critical since the Federal Government’s jurisdiction of this crime rests only on that influence. It follows that when only one particular kind of commerce is charged to have been burdened a conviction must rest on that charge and not another Stirone, 361 U.S. at 218, 80 S.Ct. at 274. In today’s case, the trial court permitted the government to argue that the jury could convict Chandler under the indictment charging her with embezzling $20,858.61 if the jury found that Chandler had taken smaller sums totalling $500 over a long period of time. When defense counsel objected, the court merely reminded the jury that counsel’s argument was not evidence and" }, { "docid": "9842532", "title": "", "text": "with our prior constructive amendment jurisprudence. See, e.g., Reasor, 418 F.3d at 475. An essential element of an 18 U.S.C. § 1001 violation is that the defendant knowingly make a false statement. See Lange, 528 F.2d at 1287. Hoover claims that the court’s charge broadened the factual bases on which the government could prove that he knowingly made a false statement. He contends that the indictment required the government to prove that he knew his statement was false because “more than one individual told him about the double flooring”; whereas, the court’s jury instruction allowed the government to obtain a conviction if it proved he knew his statement was false, even if he knew it was false for some reason other than that “more than one individual had told him” about the double flooring personally. The government counters by noting that § 1001 only requires that the government prove that the defendant knowingly made a false statement, not that the defen dant knew what the true statement would have been. Because the instruction did not modify any element of the offense, the government contends that Hoover’s indictment was not constructively amended. In accordance with the Supreme Court’s decision in Stirone v. United States, when the government chooses to specifically charge the manner in which the defendant’s statement is false, the government should be required to prove that it is untruthful for that reason. 361 U.S. at 219, 80 S.Ct. 270. To allow otherwise would permit the jury to convict the defendant on a basis broader than that charged in the grand jury’s indictment. Hoover may have reasonably relied on the indictment and only prepared a defense that only one person had told him about the double flooring of vehicles, and, therefore, he did not knowingly make a false statement. However, based on the trial court’s jury instructions, the government could have sustained a conviction by showing that Hoover knew that his statement was false for any reason, rather than being limited to the reason provided in the indictment. Importantly, under the language in the jury instructions, the government only needed" }, { "docid": "15595398", "title": "", "text": "not find that the prosecutor’s ambiguously broad reference to Rodriguez’ silence influenced the jury so as to constitute reversible error. ISSUE 2: WHETHER THE PROSECUTOR’S STATEMENTS IN HIS CLOSING ARGUMENT CONSTITUTE PROSECUTORIAL MISCONDUCT AND A DENIAL OF DUE PROCESS? Rodriguez specifies two comments made by the prosecutor during closing argument: (1) “Is this the type of person that you would feel comfortable living next door to you?”, and (2) “The defense has the ability to bring any person in the courtroom that they wish to tell you anything that they think would have an impact on this ease.” After the first comment, defense counsel’s objection was sustained and the jury was instructed to disregard the statement. The defense then moved for a mistrial but the district court overruled the motion. After the second comment, counsel approached the bench. The district court stated that the defense objection was a valid one. However, rather than instructing the jury to disregard the statement as requested by the defense, the court overruled the objection and instructed the prosecutor to tell the jury that the defendant has no burden to prove his innocence. “Counsel is accorded wide latitude during closing argument, and this court gives deference to a district court’s determination regarding whether those arguments are prejudicial and/or inflammatory.” United States v. Willis, 6 F.3d 257, 263 (5th Cir.1993) (citation and internal quotation marks omitted). Improper comments by a prosecutor may constitute reversible error where the defendant’s right to a fair trial is substantially affected. United States v. Anchondo-Sandoval, 910 F.2d 1234, 1237 (5th Cir.1990), quoted in United States v. Andrews, 22 F.3d 1328, 1341 (5th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 346, 130 L.Ed.2d 302 (1994). The pertinent factors to consider include: (1) the magnitude of the prejudicial effect of the statements; (2) the efficacy of any cautionary instruction; and (3) the strength of the evidence of the defendant’s guilt. Id.; United States v. Casel, 995 F.2d 1299, 1308 (5th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1308, 127 L.Ed.2d 659 (1994). Reversal based on improper argument by the prosecutor is" }, { "docid": "184818", "title": "", "text": "v. Mikolajczyk, 137 F.3d 237, 244 (5th Cir.1998), cert. denied,—U.S.-, 119 S.Ct. 250,—L.Ed.2d-(1998) No. 98-5534), cert. denied,—U.S.-, 119 S.Ct. 250,—L.Ed.2d-(1998) (No. 98-5559), and cert. denied,—U.S.-, 119 S.Ct. 250,—L.Ed.2d-(1998) (No. 98-5560). We still must determine whether the variance, if any, was harmless. See United States v. Puig-Infante, 19 F.3d 929, 936 (5th Cir.1994). In this inquiry, “our concern is that the indictment notifies a defendant adequately to permit him to prepare his defense, and does not leave the defendant vulnerable to a later prosecution because of failure to define the offense with particularity.” Id. (internal quotation omitted). B. In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the Court found a constructive amendment when the indictment alleged that the defendant had unlawfully interfered with the importation of sand, but the court instructed the jury that it could base a conviction on interference with the exportation of steel. The Court explained that “when only one particular kind of commerce is charged to have been burdened a conviction must rest on that charge and not another, even though it be assumed that under an indictment drawn in general terms a conviction might rest upon a showing that commerce of one kind or another had been burdened.” Id. at 218, 80 S.Ct. 270. In deciding that this modification constituted a constructive amendment, the Court reasoned that the grand jury did not indict the defendant for the conduct that may have formed the basis for his conviction; it refused to permit him to be “convicted on a charge the grand jury never made against him.” Id. at 219, 80 S.Ct. 270. We have found constructive amendments in cases where the government alleges one theory of the case in the indictment, but argues another at trial. For example, in United States v. Salinas, 654 F.2d 319 (5th Cir.1981), overruled on other grounds by United States v. Adamson, 700 F.2d 953 (5th Cir.1983) (en banc), we held that an indictment was constructively amended when it alleged that the defendant had aided and abetted theft by a certain named bank officer, but" }, { "docid": "9842533", "title": "", "text": "modify any element of the offense, the government contends that Hoover’s indictment was not constructively amended. In accordance with the Supreme Court’s decision in Stirone v. United States, when the government chooses to specifically charge the manner in which the defendant’s statement is false, the government should be required to prove that it is untruthful for that reason. 361 U.S. at 219, 80 S.Ct. 270. To allow otherwise would permit the jury to convict the defendant on a basis broader than that charged in the grand jury’s indictment. Hoover may have reasonably relied on the indictment and only prepared a defense that only one person had told him about the double flooring of vehicles, and, therefore, he did not knowingly make a false statement. However, based on the trial court’s jury instructions, the government could have sustained a conviction by showing that Hoover knew that his statement was false for any reason, rather than being limited to the reason provided in the indictment. Importantly, under the language in the jury instructions, the government only needed to prove that Hoover knew that more than one person had complained about double flooring, not that he knew that more than one person complained to him. For instance, the government could have shown that one person had told Hoover that two people had complained or that Hoover read two separate complaints. Therefore, we conclude that because the indictment charged Hoover with making one false statement, and the jury instructions allowed the jury to convict him for making a different false statement, the trial court constructively amended Hoover’s indictment. “Where the indictment has been constructively amended, by prosecution evidence wholly outside the proper scope of the indictment and/or by a jury charge authorizing a verdict of guilty thereon, but there is evidence within the proper scope of the indictment which supports the verdict, then the normal remedy is to reverse for a new trial.” Chambers, 408 F.3d at 247 n. 6; see Doucet, 994 F.2d at 172 (“Constructive amendment requires reversal of the conviction.”). Accordingly, we reverse Hoover’s false statement conviction and remand for further" }, { "docid": "9842527", "title": "", "text": "indictment sufficiently stated the falsity and materiality elements under § 1001 and provided Hoover with notice of the offense charged. See United States v. Berrios-Centeno, 250 F.3d 294, 297 (5th Cir. 2001) (stating that “the core idea underlying an indictment is notification”). We do note that this analysis is made under the plain-error standard of review. B. Constructive Amendment of the Indictment in the Jury Instructions Having determined that the indictment was sufficient under a plainly erroneous standard, we next consider whether the district court erred when it instructed the jury that it could convict Hoover if it found that he “stated that only one person had complained of ‘double flooring’ of vehicles and that such statement was intentionally false.” Hoover contends that by replacing the “truth and in fact” clause of the indictment with a generic intent instruction, the district court constructively amended the indictment and, in turn, violated his Fifth Amendment right to a grand jury indictment. See United States v. Rubio, 321 F.3d 517, 521 (5th Cir. 2003) (“A constructive amendment violates the defendant’s right under the Fifth Amendment to a grand jury indictment.”). Stated another way, Hoover argues that while the indictment required the government to prove that he knew his statement was false because “more than one individual told him about the double flooring,” the court’s jury instruction allowed the government to obtain a conviction if it proved he knew his statement was false even if he knew it for some reason other than that more than one individual had told him about the double flooring of vehicles. Because Hoover objected at trial, we review the court’s jury instructions for an abuse of discretion. See United States v. Pankhurst, 118 F.3d 345, 350 (5th Cir. 1997). “The Fifth Amendment provides for criminal prosecution only on the basis of a grand jury indictment.” United States v. Doucet, 994 F.2d 169, 172 (5th Cir. 1993); see U.S. Const, amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury .... ”). “It" }, { "docid": "8210903", "title": "", "text": "instructions at trial modify essential terms of the charged offense in such a way that there is a substantial likelihood that the jury may have convicted the defendant for an offense differing from the offense the indictment returned by the grand jury actually charged. See United States v. Miller, 471 U.S. 130, 140, 105 S.Ct. 1811, 1817, 85 L.Ed.2d 99 (1985) (constructive amendment occurs when defendant is deprived of “substantial right to be tried only on charges presented in an indictment returned by a grand jury”) (quoting Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (I960)); see also United States v. Floresca, 38 F.3d 706, 710 (4th Cir.1994) (There is “[a] constructive amendment to an indictment ... when either the government (usually during its presentation of evidence and/or its argument), the court (usually through its instructions to the jury), or both, broadens the possible bases for conviction beyond those presented by the grand jury.”). Thus, “a court cannot permit a defendant to be tried on charges that are not made in the indictment against him.” Stirone, 361 U.S. at 217, 80 S.Ct. at 273. “The key inquiry is whether the defendant was convicted of the same conduct for which he was indicted.” United States v. Robles-Vertiz, 155 F.3d 725, 729 (5th Cir.1998). Constructive amendments “are per se reversible under harmless error review, [and] are presumptively prejudicial under plain error review.” Syme, 276 F.3d at 136. In Stirone, the indictment alleged that the defendant through extortion unlawfully interfered with interstate commerce in the importing of sand into Pennsylvania. Nevertheless, the evidence showed not only importation of sand, but also exportation of steel from Pennsylvania. Moreover, the district court charged the jury that the defendant’s guilt could rest on the effect of his conduct on interstate commerce with respect to either sand or steel. 361 U.S. at 214, 80 S.Ct. at 272. The Supreme Court held that this charge coupled with the evidence adduced at trial created an unconstitutional variance between the indictment and the proof, which “destroyed the defendant’s substantial right to be tried" }, { "docid": "184817", "title": "", "text": "this discrepancy amounts to a constructive amendment of the indictment. A. Only the grand jury can broaden an indictment through amendment. United States v. Salvatore, 110 F.3d 1131, 1145 (5th Cir.1997). A constructive amendment occurs when the government changes its theory during trial so as to urge the jury to convict on a basis broader than that charged in the indictment, or when the government is allowed to prove “an essential element of the crime on an alternative basis permitted by the statute but not charged in the indictment.” Id. (quoting United States v. Slovacek, 867 F.2d 842, 847 (5th Cir.1989)). In United States v. Young, 730 F.2d 221, 223 (5th Cir.1984), we explained that “[t]he accepted test is that a constructive amendment of the indictment occurs when the jury is permitted to convict the defendant upon a factual basis that effectively modifies an essential element of the crime charged.” If, however, the indictment “contained an accurate description of the crime, and that crime was prosecuted at trial, there is no constructive amendment.” United States v. Mikolajczyk, 137 F.3d 237, 244 (5th Cir.1998), cert. denied,—U.S.-, 119 S.Ct. 250,—L.Ed.2d-(1998) No. 98-5534), cert. denied,—U.S.-, 119 S.Ct. 250,—L.Ed.2d-(1998) (No. 98-5559), and cert. denied,—U.S.-, 119 S.Ct. 250,—L.Ed.2d-(1998) (No. 98-5560). We still must determine whether the variance, if any, was harmless. See United States v. Puig-Infante, 19 F.3d 929, 936 (5th Cir.1994). In this inquiry, “our concern is that the indictment notifies a defendant adequately to permit him to prepare his defense, and does not leave the defendant vulnerable to a later prosecution because of failure to define the offense with particularity.” Id. (internal quotation omitted). B. In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the Court found a constructive amendment when the indictment alleged that the defendant had unlawfully interfered with the importation of sand, but the court instructed the jury that it could base a conviction on interference with the exportation of steel. The Court explained that “when only one particular kind of commerce is charged to have been burdened a conviction must rest on that" }, { "docid": "11283252", "title": "", "text": "Because Vialva’s counsel failed to preserve error regarding most of the prosecutor’s statements, he bears the burden of demonstrating that, all told, the prosecutor’s statements constitute plain error. United States v. Gallardo-Trapero, 185 F.3d 307, 321 (5th Cir.1999). Improper prosecutorial comments constitute reversible error only where “the defendant’s right to a fair trial is substantially affected.” United States v. Andrews, 22 F.3d 1328, 1341 (5th Cir.1994) (citation omitted). “A criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone. The determinative question is whether the prosecutor’s remarks cast serious doubt on the correctness of the jury’s verdict.” United States v. Iredia, 866 F.2d 114, 117 (5th Cir.1989). The factors relevant to this inquiry are: “(1) the magnitude of the prejudicial effect of the statements; (2) the efficacy of any cautionary instructions; and (3) the strength of the evidence of the defendant’s guilt.” Andrews, 22 F.3d at 1341 (citation omitted). Vialva has failed to demonstrate error, much less plain error. The prosecutor’s arguments, properly understood, attacked the strength of the defense on the merits, not the integrity of defense counsel. Moreover, the prosecutor had some latitude because the defense counsel accused the government of “paying for” some of its witnesses. Finally, the court instructed the jury twice not to consider the statements, arguments or questions by the attorneys as evidence. Given the strength of the prosecution’s case against Vialva, these remarks could not have denied him a fair trial. I. Cumulative Error Vialva contends that he was denied a fair trial by the cumulative impact of errors in the punishment phase. Vialva’s argument is based primarily on the district court’s failure to properly instruct the jury on the pecuniary gain aggravating factor. As explained above, the error in applying the pecuniary gain factor is harmless beyond a reasonable doubt, and Vialva was not denied a fair trial. Vialva’s cumulative impact argument is without merit. J. Sufficiency of the Indictment In supplemental briefing before this court, Bernard alleges that his sentence is unconstitutional because the grand jury did not find, nor did the indictment allege," }, { "docid": "2053479", "title": "", "text": "PER CURIAM: On petition for rehearing, Ylda reasserts his contention that the trial judge’s jury instruction impermissibly broadened the elements of the offense charged in the indictment, thus constituting reversible error. Having again fully reviewed the evidence, we find no possibility that it permitted the jury to convict Ylda based on the extraneous elements of the offense interjected by the trial court’s charge. Therefore, the jury instruction, though improper, was harmless beyond a reasonable doubt and did not constitute reversible error. In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the Supreme Court reversed a conviction for obstruction of interstate commerce under the Hobbs Act, 18 U.S.C. § 1951, because the indictment was improperly amended and the offense charged impermissibly enlarged by the trial court’s jury instructions. Although the indictment charged only an interference with sand imports, the trial judge, having first erroneously permitted the government to offer evidence regarding an interference with the exportation of steel, committed reversible error by instructing the jury that they could base their verdict on a finding that the defendant caused an interference with steel exports, a charge not alleged in the indictment. “[Bjecause of the [trial] court’s admission of evidence ... under its charge [the interference with steel exports] might have been the basis upon which the trial jury convicted [the defendant]. If so, he was convicted on a charge the grand jury never made against him.” Stirone v. United States, 361 U.S. at 219, 80 S.Ct. at 274, 4 L.Ed.2d at 258. Accordingly, to determine whether a trial court’s jury instruction has impermissibly altered the offense alleged in the indictment thus requiring reversal, the “crucial question ... is whether [the defendant] was convicted of an offense not charged in the indictment.” Stirone v. United States, 361 U.S. at 213, 80 S.Ct. at 271, 4 L.Ed.2d at 254. See Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). We have consistently adhered to both the holding and the reasoning articulated in Stirone. In United States v. Bizzard, 615 F.2d 1080 (5th Cir. 1980)," }, { "docid": "23228187", "title": "", "text": "F.3d 605, 614 (7th Cir.2006). . 467 F.3d 496, 500 (5th Cir.2006) (internal quotation marks and citation omitted). . 321 F.3d 517, 521 (5th Cir.2003). . Hoover, 467 F.3d at 500-01 (internal quotation marks and citation omitted). . 361 U.S. 212, 219, 80 S.Ct. 270, 274, 4 L.Ed.2d 252 (1960) (invalidating defendant’s Hobbs Act conviction where indictment charged interference with interstate commerce of sand but trial court permitted conviction based on interference with interstate commerce of steel); see also Hoover, 467 F.3d at 502 (reversing conviction for making false statement where indictment charged defendant lied to federal agent by stating only one person told him about a \"double flooring” problem when more than one person had actually done so, but trial judge instructed that defendant could be found guilty merely if he knew his statement was false rather than if more than one person told defendant about the problem). . See Hoover, 467 F.3d at 500-01. . 127 F.3d 380, 396 (5th Cir.1997). . Id. . 143 F.3d 923, 929 (5th Cir.1998) (addressing comment by witness about the defendant’s failure to testify). . 7 F.3d 1171, 1179 (5th Cir.1993) (internal quotation marks and citation omitted). . See Johnston, 127 F.3d at 398 (subjecting improper comments to harmless error analysis and considering the prejudicial effect of comments, the efficacy of curative instructions, and strength of evidence of guilt). . 118 F.3d 318, 325 (5th Cir.1997) (holding remark \"was an isolated comment, which did not 'strike at the jugular’ of the defense, and which the jury was immediately instructed to disregard\"). . 158 F.3d 251, 260 (5th Cir.1998). . 747 F.2d 930, 942-43 (5th Cir.1984) (\"That the jury was not inflamed is demonstrated by the fact that one defendant was acquitted on all charges and three other defendants acquitted on at least one charge. This indicates to us that the jury carefully weighed the evidence against each defendant, acquitting when the evidence was insufficient.”). . 343 F.3d 423, 439 (5th Cir.2003). . 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975) (stating that test for mental competency requires that" }, { "docid": "4517662", "title": "", "text": "prohibits further prosecution); but see Downer, 143 F.3d at 823 (double jeopardy clause does not prevent retrial after reversal based on defective indictment as opposed to insufficiency of the evidence) (citing United States v. Akpi, 26 F.3d 24, 26 (4th Cir.1994)); see also United States v. Cabrera-Teran, 168 F.3d 141, 147 (5th Cir.1999) (same); United States v. Pedigo, 12 F.3d 618, 631-32 (7th Cir.1993) (same). 2. Constructive Amendment of Indictment In light of the Court’s holding that the indictment was insufficient, the Court need not address Crowley’s argument that there was an impermissible constructive amendment of the indictment. The Court notes, however, that many of the issues raised by Crowley in this argument are identical to those raised and discussed previously. That is, the government elicited evidence at trial that defendant Crowley had rubbed Vincent’s breasts repeatedly, groped or grabbed her vagina, attempted to insert his finger into her vagina, and persistently but unsuccessfully had requested that Vincent allow him to perform oral sex on her. Without knowing, however, whether the grand jury indicted Crowley for attempted digital penetration or attempted oral sex, the Court cannot determine whether the indictment impermissibly was constructively amended at trial. What is clear, however, is that the indictment charged only one “sexual act,” and the jury was instructed that it could find the defendants guilty of one or more sexual “acts.” See Stirone v. United States, 361 U.S. 212, 216-19, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (reversing conviction where indictment charged one type of interference with interstate commerce but proof of two types of such interference was introduced at trial and jury was instructed that a conviction could rest on either type); United States v. Frank, 156 F.3d 332, 337 (2d Cir.1998) (“[t]o prevail on a constructive amendment claim, a defendant must demonstrate that either the proof at trial or the trial court’s jury instructions so altered an essential element of the charge that, upon review, it is uncertain whether the defendant was convicted of conduct that was the subject of the grand jury’s indictment”); United States v. Mucciante, 21 F.3d 1228, 1233" }, { "docid": "22042810", "title": "", "text": "prosecutorial misconduct is appropriate only when, “taken as a whole in the context of the entire case,” the prosecutor’s comments “prejudicially affect[ed the] substantial rights of the defendant.” United States v. Risi 603 F.2d 1193, 1196 (5th Cir.1979). In determining whether the defendant’s substantial rights were affected, we consider three factors: “(1) the magnitude of the prejudicial effect of the prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the judge, and (3) the strength of the evidence supporting the conviction.” United States v. Wyly, 193 F.3d 289, 299 (5th Cir.1999) (internal quotation marks omitted). “If the evidence to support a conviction is strong, then it is unlikely that the defendant was prejudiced by improper arguments of the prosecutor and reversal is not required.” United States v. Casel, 995 F.2d 1299, 1308 (5th Cir.1993), vacated on other grounds as to one defendant sub nom. Reed v. United States, 510 U.S. 1188, 114 S.Ct. 1289, 127 L.Ed.2d 644 (1994). The contested statement was weakly prejudicial, if at all. The statement was strongly supported by the evidence presented, making it unlikely that the jury relied on the prosecutor’s statement to reach the conclusion that Delgado had lied about her access to the tractor-trailer. Any prejudice is further limited because, as demonstrated above, the prosecutor’s comment neither attacked Delgado’s general character nor hinted that he was relating private information confirming Delgado’s guilt. Moreover, the alleged misconduct was limited to one brief statement. “A criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone,” United States v. Neal, 27 F.3d 1035, 1051 (5th Cir.1994), and a single statement at closing will rarely justify reversal: We must view the prosecutor’s statement in light of [the] entire trial____ [W]hile the prosecutor may have accused [the defendant] of lying, these comments were neither persistent nor pronounced when considered within the context of the entire closing argument, and they did not violate his substantive rights. Bradford v. Whitley, 953 F.2d 1008, 1013 (5th Cir.1992) (internal quotation marks and citations omitted); see also Wyly, 193 F.3d at 299 (“For prosecutorial misconduct" }, { "docid": "11176318", "title": "", "text": "of the instructions, and in particular to the word “minimal.” Although the defendants had previously moved to dismiss the indictment on the ground that the Cruz home had an insubstantial effect on interstate commerce, the basis for their objection to the jury instruction was not that the sentence misstated the law. Rather, the defendants objected because, in their view, this sentence commented on the weight of the evidence. The district court therefore had no opportunity to consider the constitutional effect of the objected-to language. Cf. United States v. Jennings, 195 F.3d 795, 801 (5th Cir.1999) (considering, in a Hobbs Act prosecution, the effect of an instruction requiring “an effect,” rather than a “substantial effect,” on interstate commerce). Accordingly, we review for plain error. Under the plain error analysis, the court may reverse a criminal conviction only if (1) there was error, (2) the error was clear and obvious, and (3) the error affected a substantial right. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993); Fed.R.Crim.P. 52(b). Further, because review of plain error is permissive, rather than mandatory, we exercise our discretion to reverse a conviction only if the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (alteration in original) (citations and internal quotation marks omitted); United States v. Slaughter, 238 F.3d 580, 584-85 (5th Cir.2000). Jimenez’s and Santivanez’s challenge fails on the third element of the Olano test, because the word “minimal” did not affect a substantial right. A criminal defendant ordinarily bears the burden of proving that the error “must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. at 1778. In United States v. Garcia Abrego, 141 F.3d 142, 166 (5th Cir.1998), we rejected the contention that the court’s continuing criminal enterprise (“CCE”) instruction prejudiced a defendant by suggesting, theoretically, that the defendant could be an organizer of persons who were not his supervisees. Because the government’s case established that the defendant supervised a large number of persons, and because the government did not argue that the jury" }, { "docid": "15595399", "title": "", "text": "tell the jury that the defendant has no burden to prove his innocence. “Counsel is accorded wide latitude during closing argument, and this court gives deference to a district court’s determination regarding whether those arguments are prejudicial and/or inflammatory.” United States v. Willis, 6 F.3d 257, 263 (5th Cir.1993) (citation and internal quotation marks omitted). Improper comments by a prosecutor may constitute reversible error where the defendant’s right to a fair trial is substantially affected. United States v. Anchondo-Sandoval, 910 F.2d 1234, 1237 (5th Cir.1990), quoted in United States v. Andrews, 22 F.3d 1328, 1341 (5th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 346, 130 L.Ed.2d 302 (1994). The pertinent factors to consider include: (1) the magnitude of the prejudicial effect of the statements; (2) the efficacy of any cautionary instruction; and (3) the strength of the evidence of the defendant’s guilt. Id.; United States v. Casel, 995 F.2d 1299, 1308 (5th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1308, 127 L.Ed.2d 659 (1994). Reversal based on improper argument by the prosecutor is not called for when there has not been a strong showing of a deleterious effect upon the right to a fair trial. Casel, 995 F.2d at 1308. To warrant reversal of a conviction, prosecutorial misconduct must be so pronounced and persistent that it casts serious doubts upon the correctness of the jury’s verdict. United States v. Williams, 20 F.3d 125, 134 (5th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 239, 130 L.Ed.2d 162 (1994) (citation and internal quotations omitted); Andrews, 22 F.3d at 1341 (citations omitted). The closing argument must be analyzed in the context of the entire trial to determine whether it affected substantial rights of the accused. United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1 (1985); The prosecutor’s question about Rodriguez’ neighborliness was improper but harmless, given the prompt curative instruction to disregard the question, as well as the overwhelming evidence as discussed above. As to the second comment, we find the curative action sufficient to render the error, if any, harmless. Contrary to Rodriguez’" }, { "docid": "23228188", "title": "", "text": "witness about the defendant’s failure to testify). . 7 F.3d 1171, 1179 (5th Cir.1993) (internal quotation marks and citation omitted). . See Johnston, 127 F.3d at 398 (subjecting improper comments to harmless error analysis and considering the prejudicial effect of comments, the efficacy of curative instructions, and strength of evidence of guilt). . 118 F.3d 318, 325 (5th Cir.1997) (holding remark \"was an isolated comment, which did not 'strike at the jugular’ of the defense, and which the jury was immediately instructed to disregard\"). . 158 F.3d 251, 260 (5th Cir.1998). . 747 F.2d 930, 942-43 (5th Cir.1984) (\"That the jury was not inflamed is demonstrated by the fact that one defendant was acquitted on all charges and three other defendants acquitted on at least one charge. This indicates to us that the jury carefully weighed the evidence against each defendant, acquitting when the evidence was insufficient.”). . 343 F.3d 423, 439 (5th Cir.2003). . 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975) (stating that test for mental competency requires that defendant have capacity to understand nature and object of proceedings against him, to consult with counsel, and to assist in his defense). Scheur does not challenge on appeal the district court's finding that he was competent to stand trial, and instead raises the more narrow argument that the denial of reasonable accommodations denied him the ability to comprehend the exhibits, follow the testimony, and assist in his defense. . 46 Ill.2d 281, 263 N.E.2d 109, 113 (1970). . 568 F.2d 1128, 1132 (5th Cir.), opinion withdrawn on other grounds, 573 F.2d 867 (5th Cir.1978). . Id. at 1131-32. . The record shows that Scheur graduated magna cum laude from Tufts University and later graduated from Yale Law School. . 48 F.3d 1389, 1393 (5th Cir.1995) (\"This court will reverse a district court’s decision denying a defendant’s motion for continuance only when the district court has abused its discretion and the defendant can establish that he suffered serious prejudice.”) (internal quotations and citation omitted). . Ferrell, 568 F.2d at 1131 (quoting Chambers v. Mississippi, 410 U.S." }, { "docid": "12533014", "title": "", "text": "See Calverley, 37 F.3d at 164 (“The burden of persuasion lies with the defendant.”). Consequently, we have no authority to correct the district court’s error. Id. We must consider the prosecutor’s remark and the judge’s response in context. “To determine the potential prejudicial effect of the statements, we must consider the context in which the prosecutor made them.” United States v. Pierre, 958 F.2d 1304, 1312 (5th Cir.) (en bane), cert. denied, 506 U.S. 898, 113 S.Ct. 280, 121 L.Ed.2d 207 (1992); Fierro, 38 F.3d at 771 (citations omitted). In determining whether a defendant has been prejudiced by an adverse comment on his failure to testify, our harmless error analysis in United States v. Shaw is instructive: We have found harmless error in cases where reference to the [defendant’s] silence was neither made nor elicited by the prosecution; where the prosecution did not “focus on” or “highlight” the reference; where the comment did not “strike at the jugular” of the defendant’s defense; and where there was no further mention of the silence, and there was “strong evidence” of the defendant’s guilt. Shaw, 701 F.2d 367, 383 (5th Cir.1983) (citations omitted), cert. denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984). In this case the comment was obviously made by the prosecutor herself, and at a crucial time when the jury’s attention should have been riveted on her argument. The potential for serious harm was present. However, it was an isolated comment, which did not “strike at the jugular” of the defense, and which the jury was immediately instructed to disregard. Moreover, no one has suggested that it was a calculated appeal to the jury; to all appearances, Barrow’s was a spontaneous remark intended to call attention to Griffith’s disruptive behavior during her argument, and not to imply that he was harboring guilty secrets. Finally, and we think significantly, the prosecution’s evidence against Griffith was strong. His tape-recorded conversations, the discovery of approximately 40 pounds of marijuana in his home, and the seizure of marijuana cigarettes from his truck are all highly incriminating. We are confident that the jury," }, { "docid": "23228186", "title": "", "text": "reviewed and relied on those statements. . Cf. Christopher v. Miles, 342 F.3d 378, 384 (5th Cir.2003) (“The fraudulent acquisition of regulatory approvals was merely incidental to the broader purpose of the scheme — defrauding the insurance companies and their policyholders out of millions of dollars.”). . See Blumeyer, 114 F.3d at 767-68; United States v. Cosentino, 869 F.2d 301, 307 (7th Cir.1989) (”[I]n misleading the Department of Insurance, the scheme permitted the agency to remain in business past the point it would have had the Department been aware of the defendants' activities — and that additional time allowed the defendants more time to take [the victim's] money....\"). . See Ratcliff, 488 F.3d at 645; Pepper, 51 F.3d at 473; see also Kreuter v. United States, 218 F.2d 532, 535 (5th Cir.1955) (“[I]t is not necessary to prove communication of the alleged false representations to the victims.”). . 959 F.2d 1332, 1337 (5th Cir.1992) (holding that Government need not prove victim of fraud was actually harmed by showing a financial loss). . Id. . 443 F.3d 605, 614 (7th Cir.2006). . 467 F.3d 496, 500 (5th Cir.2006) (internal quotation marks and citation omitted). . 321 F.3d 517, 521 (5th Cir.2003). . Hoover, 467 F.3d at 500-01 (internal quotation marks and citation omitted). . 361 U.S. 212, 219, 80 S.Ct. 270, 274, 4 L.Ed.2d 252 (1960) (invalidating defendant’s Hobbs Act conviction where indictment charged interference with interstate commerce of sand but trial court permitted conviction based on interference with interstate commerce of steel); see also Hoover, 467 F.3d at 502 (reversing conviction for making false statement where indictment charged defendant lied to federal agent by stating only one person told him about a \"double flooring” problem when more than one person had actually done so, but trial judge instructed that defendant could be found guilty merely if he knew his statement was false rather than if more than one person told defendant about the problem). . See Hoover, 467 F.3d at 500-01. . 127 F.3d 380, 396 (5th Cir.1997). . Id. . 143 F.3d 923, 929 (5th Cir.1998) (addressing comment by" }, { "docid": "15284041", "title": "", "text": "by the district court in response to a question received from the jury during its deliberations constructively amended the indictment. A. The Fifth Amendment provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury_” U.S. Const. Amend. V. After the indictment is “returned[,] its charges may not be broadened through amendment except by the grand jury itself.” Stirone v. United States, 361 U.S. 212, 216, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Thus, the “court cannot permit a defendant to be tried on charges that are not made in the indictment against him.” Id. at 217, 80 S.Ct. 270. If a constructive amendment is found, the error is fatal and reversible per se. See id. at 219, 80 S.Ct. 270; see also United States v. Foster, 507 F.3d 233, 242 (4th Cir.2007). “A constructive amendment to an indictment occurs when either the government (usually during its presentation of evidence and/or its argument), the court (usually through its instructions to the jury), or both, broadens the possible bases for conviction beyond those presented to the grand jury.” United States v. Floresca, 38 F.3d 706, 710 (4th Cir.1994) (en banc). Constructive amendments of an indictment are regarded “as fatal variances because ‘the indictment is altered to change the elements of the offense charged, such that the defendant is actually convicted of a crime other than that charged in the indictment.’ ” Foster, 507 F.3d at 242 (quoting United States v. Randall, 171 F.3d 195, 203 (4th Cir.1999)). In Stirone, for example, the Supreme Court held that a constructive amendment had occurred because the indictment charged the defendant with unlawfully interfering with interstate commerce in violation of the Hobbs Act based upon the defendant’s interference with sand shipments, but the district court instructed the jury that it could also convict based upon evidence allowed regarding future interstate steel shipments. See Stirone, 361 U.S. at 219, 80 S.Ct. 270. Thus, the defendant was tried and convicted of a charge not contained in the indictment and of which there" } ]

[ { "docid": "23605047", "title": "", "text": "their two-year exile would cause an exceptional hardship on their two children who, because of their birth in this country, are United States citizens. The waiver was denied when the Immigration Service determined that no extraordinary hardship existed. Petitioners are further handicapped in their efforts to remain in this country by the provisions of 8 U.S.C.A. § 1151(b), which allows the admission as non-quota immigrants of immediate rel atives of United States citizens, but provides that in the case of parents, the citizen child who can confer this privilege must be twenty-one years of age. Since the Perdido children are one and two years old, the Perdidos cannot benefit from the immediate relative provisions of § 1151(b). The petitioners contend that as applied to them the two-year foreign residence requirement of § 1182(e) is unconstitutional. Their argument is that a deportation order against the parents of a citizen child deprives the child of a constitutional right. This argument has been raised and rejected on other occasions. United States ex rel. Hintopoulos v. Shaughnessy, 1957, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652; Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586; Mendez v. Major, 8 Cir. 1965, 340 F.2d 128. It is undisputed that the Perdido children have every right to remain in this country. The parents, however, enjoy no such right. They entered this country under a special program which requires a two-year absence before a participant is eligible for permanent residence. Entry into this country by aliens has always been a matter of Congressional discretion. Harisiades v. Shaugh-nessy, supra. The petitioners here took advantage of that discretion in order to come here for educational purposes. They cannot now complain because the privilege exception under which they arrived also requires that they depart for two years. Nor can they complain because the discretionary waiver of this requirement provided under § 1182(e) was denied. As the Supreme Court said in Hintopoulos, supra: “Suspension of deportation is a matter of discretion and of administrative grace, not mere eligibility; discretion must be exercised even though statutory prerequisites" } ]

[ { "docid": "7855047", "title": "", "text": "77 L.Ed.2d 317 (1983), this plenary authority is subject to the limits of the Constitution. See, e.g., Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954); Carlson v. Landon, 342 U.S. 524, 533, 72 S.Ct. 525, 96 L.Ed. 547 (1952). Wfhile an alien seeking initial admission to the United States has no constitutional rights regarding an application for admission, United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 94 L.Ed. 317 (1950), “once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes.” Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). The Supreme Court has held that a permanent resident alien “continuously present” in the United States has a right to procedural due process in any proceedings to remove that alien from the country. See, e.g., Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Landon v. Plasencia, 459 U.S. at 21, 103 S.Ct. 321. At the core of the alien’s due process rights is the right to notice of the nature of the charges and a meaningful opportunity to be heard. See, e.g., Kwong Hai Chew v. Colding, 344 U.S. 590, 596-98, 73 S.Ct. 472, 97 L.Ed. 576 (1953). Removal proceedings under the INA are not criminal proceedings and are not summary ejection proceedings. See Boston-Bollers, 106 F.3d 352, 355 (11th Cir.1997). Instead, removal proceedings are imbued with procedural safeguards that satisfy the Due Process Clause. The alien has the right to notice, the opportunity to present evidence and cross examine witnesses, and the right to do so with the assistance of counsel at a hearing before an immigration judge. Given these procedural safeguards, no judicial review is required to provide the process due to a permanent resident alien facing removal. See, e.g., Carlson v. Landon, 342 U.S. 524, 537, 72 S.Ct. 525, 96 L.Ed. 547 (1952); Boston-Bollers, 106 F.3d at 354-55; Yang v. INS, 109 F.3d 1185, 1196-97 (7th Cir.), cert. denied sub nom, Katsoulis v." }, { "docid": "13974417", "title": "", "text": "exclude aliens, to admit them only on such conditions as it seems fit to prescribe, and to expel those within its ■dominion is plenary. These powers inhere in its sovereignty and have been consistently recognized by the courts. Nishimura Ekiu v. United States, 142 U.S. 651, 12 S.Ct. 336, 35 L.Ed. 1146 (1892); Fok Young Yo v. United States, 185 U.S. 296, 22 S.Ct. 686, 46 L.Ed. 917 (1902) ; Kaoru Yamataya v. Fisher, 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721 (1903) ; Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952); Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1952). In addition, Congress may designate such .agencies as it sees fit to carry out whatever policies of exclusion and expulsion it adopts and so long as such agencies do not transcend limits of authority or .abuse discretion reposed in them, their .judgment is not open to challenge or review by courts. Kaoru Yamataya v. Fisher, supra. In 1952, Congress en•acted the Immigration and Nationality Act (8 U.S.C. §§ 1101 et seq.), as a comprehensive, revised immigration, naturalization, and nationality code As an essential part of this legislative scheme, the Attorney General is given the responsibility of passing on the applications of aliens for the withholding or suspension of deportation. . In passing on such applications, the Attorney General must first make factual findings as to whether the statutory prerequisites of eligibility have been met. The correctness of the legal standards applied in making such factual determinations are fully reviewable in the courts. United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957); McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173 (1950); McLeod v. Peterson, 283 F.2d 180 (3d Cir. 1960); United States ex rel. Exarchou v. Murff, 265 F.2d 504 (2d Cir. 1959); Pagano v. Brownell, 227 F.2d 36 (D.C. Cir. 1955). Once the Attorney General finds that the alien is eligible for withholding or suspension of deportation, he must decide whether to exercise his discretion in the" }, { "docid": "23199211", "title": "", "text": "AFDC benefits, and as a consequence, no similar language exists in 42 U.S.C. § 602(a)(33). We conclude that the Secretary’s assertion that Congress never intended to extend welfare benefits to aliens whose presence in the United States is unlawful and whose sole claim to entitlement rests on their filing applications for asylum with the INS is reasonable and, accordingly, permissible. The district court did not misapprehend the law in concluding that the plaintiffs had failed to demonstrate any success on the merits of their claimed eligibility for AFDC benefits. IV. EQUAL PROTECTION Even if 42 U.S.C. § 602(a)(33) excludes asylum applicants from eligibility for AFDC benefits, the appellants maintain that the Department’s denial of benefits to aliens in the plaintiffs’ class is unconstitutional. The district court, finding that the state had merely adopted a federal policy regarding the treatment of asylum applicants, applied the rational basis test and concluded that the challenged classification was valid. The appellants insist that the use of the rational basis test was improper. They maintain that either the strict scrutiny test (state classifications based on alienage, see Bernal v. Fainter, — U.S. -, 104 S.Ct. 2312, 2316, 81 L.Ed.2d 175 (1984); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971)), or the intermediate level of scrutiny (state laws discriminating against illegal aliens, see Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)) should apply. We hold otherwise. Our foundation is that federal authority in the areas of immigration and naturalization is plenary. See Fiallo v. Bell, 430 U.S. 787, 794-96, 97 S.Ct. 1473, 1479-80, 52 L.Ed.2d 50 (1977); Mathews v. Diaz, 426 U.S. 67, 81-82, 96 S.Ct. 1883, 1892, 48 L.Ed.2d 478 (1976); Takahashi v. Fish & Game Commission, 334 U.S. 410, 419, 68 S.Ct. 1138, 1142, 92 L.Ed. 1478 (1948); U.S. Const. art. I, § 8, cl. 4. Judicial review of the decisions made by the political branches is fairly narrow. Mathews, 426 U.S. at 81-82, 96 S.Ct. at 1892; Harisiades v. Shaughnessy, 342 U.S. 580, 588-89, 72 S.Ct. 512, 518-19, 96 L.Ed. 586 (1952). Accordingly," }, { "docid": "3293316", "title": "", "text": "an alien’s right of entry or continued residence. Silverman v. Rogers, 1 Cir., 1970, 437 F.2d 102, 107, cert. denied, 402 U.S. 983, 91 S.Ct. 1667, 29 L.Ed.2d 149; see Perdido v. I.N.S., 5 Cir., 1969, 420 F.2d 1179, 1181. While resident aliens are entitled to the full protection of this country’s laws, until they obtain and maintain citizenship by naturalization they are subject to the plenary authority of Congress’ immigration and naturalization powers. Carlson v. Landon, 342 U.S. 524, 534, 72 S.Ct. 525, 531, 96 L.Ed. 547 (1952). Thus, while most state classifications based on alienage are inherently suspect, Graham v. Richardson, In re Griffiths, Sugarman v. Dougall, Takahashi v. Fish and Game Comm’n, supra, the same is not true of all such federal classifications where Congress’ plenary authority in the field of immigration is involved. Although Congress may not single out aliens for discriminatory treatment in matters not related to the furtherance of its naturalization responsibilities, Ramos v. United States Civil Service Comm’n, D.P.R., 1974, 376 F.Supp. 361, 366 (three-judge court), Congress has the power to define reasonable prerequisites to an alien’s exercise of the rights and duties of citizenship. We be lieve that preventing resident aliens from serving as jurors is rationally related to Congress’ legitimate power to define the extent of resident aliens’ rights prior to obtaining citizenship. Recently, the Supreme Court stated that a state may deny to aliens the opportunity to participate in the electoral process because of a “State’s historical power to exclude aliens from participation in its democratic political institutions” and its “constitutional responsibility for the establishment and operation of its own government,” Sugarman v. Dougall, supra, 413 U.S. at 648, 93 S.Ct. at 2850-2851. If a state has the inherent power to deprive aliens of the right to vote, Congress, with its broad powers in dealing with aliens, may validly require citizenship as a prerequisite to service on federal juries. Cf. Ramos v. United States Civil Service Comm’n, supra, 376 F.Supp. at 367 n. 9; Perkins v. Smith, supra, 370 F.Supp. at 139 n. 1 (concurring opinion). Since Congress may validly" }, { "docid": "9502283", "title": "", "text": "the Immigration and Naturalization Service can take within the law administered by the Department of Justice to revoke this alien’s parole, deporting him or restricting his presence at large, would accordingly advance our foreign policy objectives.” A year and three months before receipt of such advice from the Secretary of State (on January 8, 1960), the defendant district director had notified the plaintiff: “I have now concluded that your continued presence at large in the State of Florida or any other area within 150 miles of the Gulf of Mexico is not in the national interest. You were directed on December 21, 1959, to remove yourself by January 6, 1960, to any location of your choice not within the proscribed area. This you failed to do.” Even in deportation cases the courts will review the exercise of administrative discretion only upon a showing that it was arbitrary and without reasonable foundation. Carlson v. Landon, 1952, 342 U.S. 524, 540, 72 S.Ct. 525, 96 L.Ed. 547; Jay v. Boyd, 1956, 351 U.S. 345, 353, et seq., 76 S.Ct. 919, 100 L.Ed. 1242; Hintopoulos v. U. S. ex rel. Shaughnessy, 1957, 353 U.S. 72, 77, 77 S.Ct. 618, 1 L.Ed.2d 652. In exclusion cases the courts have no power not expressly granted by Congress. As said in U. S. ex rel. Knauff v. Shaughnessy, 1950, 338 U.S. 537, 542, 543, 70 S.Ct. 309, 312, 94 L.Ed. 317: “ * * * The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. * * * When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power. “Thus the decision to admit or to exclude an alien may be lawfully placed with the President, who may in turn delegate the carrying out of this function to a responsible executive officer of the sovereign, such as the Attorney General. The action of the executive" }, { "docid": "22604433", "title": "", "text": "to determine whether a more probing level of review would be appropriate. Article I, § 8, cl. 4, of the Constitution provides: “The Congress shall have Power... To establish an uniform Rule of Naturalization.” The Federal Government has “broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization.” Takahashi v. Fish & Game Comm’n, 334 U. S. 410, 419 (1948). See Graham v. Richardson, 403 U. S. 365, 378 (1971) (regulation of aliens is “constitutionally entrusted to the Federal Government”). The Court has traditionally shown great deference to federal authority over immigration and to federal classifications based upon alienage. See, e. g., Fiallo v. Bell, 430 U. S. 787, 792 (1977) (“it is important to underscore the limited scope of judicial inquiry into immigration legislation”); Harisiades v. Shaughnessy, 342 U. S. 580, 588-589 (1952) (“It is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference”). Indeed, even equal protection analysis in this area is based to a large extent on an underlying theme of pre-emption and exclusive federal power over immigration. See Takahashi v. Fish & Game Comm’n, supra, at 420 (the Federal Government has admitted resident aliens to the country “on an equality of legal privileges with all citizens under nondiscriminatory laws” and the States may not alter the terms of this admission). Compare Graham v. Richardson, supra, and Sugarman v. Dougall, 413 U. S. 634 (1973), with Mathews v. Diaz, 426 U. S. 67 (1976), and Hampton v. Mow Sun Wong, 426 U. S. 88 (1976). Given that the States’ power to regulate in this area is so limited, and that this is an area of such peculiarly strong federal authority, the necessity of federal leadership" }, { "docid": "9594817", "title": "", "text": "the Court stated that the government’s power to terminate its hospitality towards any class of aliens has been asserted and sustained as an essential element of international relations since the question first arose. Mr. Justice Frankfurter in his concurring opinion in Harisiades notes: But whether immigration laws have been crude and cruel, whether they may have reflected xenophobia in general or anti-Semitism or anti-Catholicism, the responsibility belongs to Congress. . . . But the underlying policies of what classes of aliens shall be allowed to enter and what classes of aliens may be allowed to stay, are for Congress exclusively to determine even though such determination may be deemed to offend American traditions. ... (at page 597, 72 S.Ct. at page 523) It is firmly established that Congress has the power to exclude aliens of a particular race from the United States, prescribe the terms and conditions upon which certain classes of aliens may come to the country, establish regulations for sending out of the country such aliens as come here in violation of law and commit the enforcement of such provisions to the appropriate executive officers. See Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Carlson v. Landon, 342 U.S. 524; 72 S.Ct. 525, 96 L.Ed. 547 (1952); Takahashi v. Fish and Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1893); Uribe-Temblador v. Rosenberg, 423 F.2d 717 (9th Cir. 1970); Talanoa v. Immigration and Naturalization Service, 397 F.2d 196 (9th Cir. 1968). The Immigration and Nationality Act of 1952 originally provided in § 101(a) (27) (C) that a nonquota immigrant included: (C) an immigrant who was born in Canada, the Republic of Mexico, the Republic of Cuba, the Republic, of Haiti, the Dominican Republic, the Canal Zone, or an independent country of Central or South America, and the spouse or child of any such immigrant, if accompanying or following to join him; This section conferred a benefit on the majority of Western Hemisphere countries in" }, { "docid": "22204307", "title": "", "text": "and substantial, and that its use of the classification is 'necessary ... to the accomplishment’ of its purpose or the safeguarding of its interest.” In re Griffiths, 413 U. S., at 721-722 (footnotes omitted). These principles are applicable to the Puerto Rico statute now under consideration. The underpinnings of the Court’s constitutional decisions defining the circumstances under which state and local governments may favor citizens of this country by denying lawfully admitted aliens equal rights and opportunities have been two. The first, based squarely on the concepts embodied in the Equal Protection Clause of the Fourteenth Amendment and in the Due Process Clause of the Fifth Amendment, recognizes that “[a]liens as a class are a prime example of a 'discrete and insular’ minority ... for whom . . . heightened judicial solicitude is appropriate.” Graham v. Richardson, 403 U. S., at 372. See also San Antonio School Dist. v. Rodriguez, 411 U. S. 1, 29 (1973); Sugarman v. Dougall, 413 U. S., at 642. The second, grounded in the Supremacy Clause, Const., Art. VI, cl. 2, and in the naturalization power, Art. I, § 8, cl. 4, recognizes the Federal Government’s primary responsibility in the field of immigration and naturalization. See, e. g., Hines v. Davidowitz, 312 U. S. 52, 66 (1941); Truax v. Raich, 239 U. S. 33, 42 (1915). See also Graham v. Richardson, 403 U. S., at 378; Takahashi v. Fish & Game Comm’n, 334 U. S. 410, 419 (1948). Official discrimination against lawfully admitted aliens traditionally has taken several forms. Aliens have been prohibited from enjoying public resources or receiving public benefits on the same basis as citizens. See Graham v. Richardson, supra; Takahashi v. Fish & Game Comm’n, supra. Aliens have been excluded from public employment. Sugarman v. Dougall, supra. See M. Konvitz, The Alien and the Asiatic in American Law, c. 6 (1946). And aliens have been restricted from engaging in private enterprises and occupations that are otherwise lawful. See In re Griffiths, supra; Truax v. Raich, supra; Yick Wo v. Hopkins, 118 U. S. 356, 369 (1886). The present Puerto Rico statute, of" }, { "docid": "7855046", "title": "", "text": "outlined in Bostorir-Bollers but also because Congress clearly has the authority (a) to repeal § 2241 jurisdiction over immigration decisions, (b) to legislate that all judicial review of immigration decisions must be exclusively under the INA, and (e) to regulate the exclusive mode and precise timing of that judicial review within the INA’s provisions. As shown below, Congress’ repeal of § 2241 and its enactment of the requirement that all judicial review now be exclusively under the INA, in the court of appeals, and after a final removal order do not violate the Due Process Clause, Article III, or the Suspension Clause. We now examine each such constitutional provision in turn. D. Due Process Clause Permanent resident aliens are protected by the Due Process Clause of the Fifth Amendment which provides that “[n]o person shall be ... deprived of life, liberty or property, without due process of law....” U.S. Const. amend. V. Although the political branches exercise plenary control over the admission and removal of aliens, INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), this plenary authority is subject to the limits of the Constitution. See, e.g., Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954); Carlson v. Landon, 342 U.S. 524, 533, 72 S.Ct. 525, 96 L.Ed. 547 (1952). Wfhile an alien seeking initial admission to the United States has no constitutional rights regarding an application for admission, United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 94 L.Ed. 317 (1950), “once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes.” Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). The Supreme Court has held that a permanent resident alien “continuously present” in the United States has a right to procedural due process in any proceedings to remove that alien from the country. See, e.g., Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Landon v. Plasencia, 459 U.S. at 21, 103" }, { "docid": "22826466", "title": "", "text": "149 U.S. at 713, 13 S.Ct. at 1022; Nishimura Ekiu, 142 U.S. at 659, 12 S.Ct. at 338. Congress may exercise its implied powers in the immigration field through its legislative powers, while the Executive has two sources of authority in this area: (1) power delegated by Congress through statutes such as the INA and (2) its inherent power, arising out of the Executive’s plenary authority over foreign relations. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950). Theoretically, the President has an independent source of power concerning immigration policy, at least with regard to matters that are not the subject of either a statutory mandate or an express prohibition. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 636-37, 72 S.Ct. 863, 870-71, 96 L.Ed. 1153 (1952) (Jackson, J., concurring); Olegario v. United States, 629 F.2d 204, 226 (2d Cir. 1980), cert. denied, 450 U.S. 980, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981). In practice, however, the comprehensive character of the INA vastly restricts the area of potential executive freedom of action, and the courts have repeatedly emphasized that the responsibility for regulating the admission of aliens resides in the first instance with Congress. See, e.g., Knauff, 338 U.S. at 543, 70 S.Ct. at 312; Fong Yue Ting, 149 U.S. at 713, 13 S.Ct. at 1022; Nishimura Ekiu, 142 U.S. at 659, 12 S.Ct. at 338; Palma v. Verdeyen, 676 F.2d 100, 103 (4th Cir.1982). The courts have instead tended to view the President’s inherent powers as a justification for permitting Congress to make remarkably broad delegations of its authority in the immigration field. As Justice Minton explained in Knauff, “[njormally Congress supplies the conditions of the privilege of entry into the United States. But because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power” without raising delegation concerns. 338 U.S. at 543, 70 S.Ct. at 313; cf. Zemel v. Rusk, 381 U.S. 1, 17, 85 5. Ct." }, { "docid": "23548863", "title": "", "text": "the in-state policy violated the Supremacy Clause by encroaching upon Congress’ prerogatives with respect to the regulation of immigration. Id., at 667-668. The Court of Appeals affirmed for “reasons sufficiently stated” by the District Court. Moreno v. University of Maryland, 645 F. 2d 217, 220 (1981) (per curiam). We granted certiorari. 454 U. S. 815 (1981). For the reasons that follow, we hold that the University of Maryland’s instate policy, as applied to G-4 aliens and their dependents, violates the Supremacy Clause of the Constitution, and on that ground affirm the judgment of the Court of Appeals. We therefore have no occasion to consider whether the policy violates the Due Process or Equal Protection Clauses. II Our cases have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens within our borders. See, e. g., Mathews v. Diaz, 426 U. S. 67 (1976); Graham v. Richardson, 403 U. S. 365, 377-380 (1971); Takahashi v. Fish & Game Comm’n, 334 U. S. 410, 418-420 (1948); Hines v. Davidowitz, 312 U. S. 52, 62-68 (1941); Truax v. Raich, 239 U. S. 33, 42 (1915). Federal authority to regulate the status of aliens derives from various sources, including the Federal Government’s power “[t]o establish [a] uniform Rule of Naturalization,” U. S. Const., Art. I, § 8, cl. 4, its power “[t]o regulate Commerce with foreign Nations”, id., cl. 3, and its broad authority over foreign affairs, see United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 318 (1936); Mathews v. Diaz, supra, at 81, n. 17; Harisiades v. Shaughnessy, 342 U. S. 580, 588-589 (1952). Not surprisingly, therefore, our cases have also been at pains to note the substantial limitations upon the authority of the States in making classifications based upon alienage. In Takahashi v. Fish & Game Comm’n, supra, we considered a California statute that precluded aliens who were “ineligible for citizenship under federal law” from obtaining commercial fishing licenses, even though they “met all other state requirements” and were lawful inhabitants of the State. 334 U. S., at 414. In seeking to defend the" }, { "docid": "3293314", "title": "", "text": "a compelling interest in the restriction of jury service to those who will be loyal to, interested in, and familiar with, the customs of this country. Resident aliens by definition have not yet been admitted to citizenship. Until they become citizens, they remain in most cases legally bound to the country of their origin. Nothing is to prevent their return to that country, or a move to yet a third nation. It is true that many, if not most, aliens do intend to become citizens, and that their loyalty could probably be counted upon. However, it is the process of filing for citizenship that establishes that loyalty; any attempt at prior screening would undercut the efficiency and significance of existing procedures. Therefore, although the presumption that all aliens owe no allegiance to the United States is not valid in every case, no alternative to taking citizenship for testing allegiance can be devised, so that we conclude that the classification is compelled by circumstances, and that it is justifiable. 370 F.Supp. at 138. While we are satisfied that the Government has a compelling state interest sufficient to uphold the statute as constitutional, there is another reason why aliens may be excluded from federal juries. Under Article I, section 8, clause 4 of the Constitution, Congress is granted the power “to establish an uniform Rule of Naturalization.” This specific grant of authority vests in Congress the plenary, unqualified power to determine which aliens shall be admitted to this country, the period they may remain, and the terms and conditions of their naturalization. Graham v. Richardson, supra, 403 U.S. at 377, 91 S.Ct. at 1854; Takahashi v. Fish and Game Comm’n, supra, 334 U.S. at 419, 68 S.Ct. at 1142; Hines v. Davidowitz, 312 U.S. 52, 66, 61 S.Ct. 399, 403, 85 L.Ed. 581 (1941); see also Harisiades v. Shaughnessy, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1950). The plenary authority to admit or exclude aliens necessarily permits Congress to place certain conditions on" }, { "docid": "18289242", "title": "", "text": "action is directed is nonimmigrant aliens. No rationale has been presented by Defendants for distinguishing among aliens according to their immigrant status except that Defendants admit they believe the Motion could not constitutionally be applied to these immigrant aliens.' Aliens residing in our land have long enjoyed protection of the United States Constitution. The Fourteenth Amendment protects not only citizens, but also “any person” within a state’s jurisdiction, from unequal treatment at the hands of the state. See, Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (aliens cannot be excluded from laundry business); Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915); Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948). Alienage has been treated under modern equal protection analysis as a suspect classification, Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), thus invoking strict judicial scrutiny of a state’s challenged action. While states may deny aliens the right to vote, a traditional badge of citizenship, they may not deny aliens welfare benefits, Id., competing for certain civil service jobs, Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973), membership in the Bar, In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973), or engineering jobs, Examining Board v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264,49 L.Ed.2d 65 (1976). In this line of cases, the one most on point for our purposes is Nyquist v. Mauclet, 432 U.S 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977). In that case, the Supreme Court found an equal protection violation where the State of New York denied aliens the right to receive state financial assistance for higher education. Plaintiffs argue that if a state cannot deny aliens financial assistance for a college education, a fortiori it cannot deny them the education itself. Defendants argue that alienage is not always a suspect classification. While Graham v. Richardson, supra, and its progeny have never been expressly overruled, Defendants cite recent cases in which the" }, { "docid": "6330788", "title": "", "text": "no compelling justification. In the court’s view, however, this mode of analysis is incorrect. The Supreme Court has consistently pointed out that Congressional power — and, by a proper delegation, Executive power — respecting aliens is quite broad, almost plenary. Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1951); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1949); Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1951). This extensive power is based in part upon the following considerations enunciated by Mr. Justice Jackson: It is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference. [citations omitted]. Harisiades v. Shaughnessy, 342 U.S. at 588-589, 72 S.Ct. at 519. The broad power over aliens also stems from Article 1, § 8, Cl. 4 of the Constitution, wherein Congress is given the exclusive power, “To establish a uniform rule of naturalization”, and from Article 1, § 8, Cl. 18, wherein Congress is empowered to make all laws which are “necessary and proper” for carrying into execution its enumerated powers. Moreover, the plenary power of the Congress with respect to aliens is further illustrated by those Supreme Court cases which have struck down state statutes respecting aliens because these statutes conflicted with the federal power to regulate immigration and naturalization. E. g., Torao Takahashi v. Fish and Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1947); and cases cited therein at 334 U.S. 419, n. 6, 68 S.Ct. 1138. In the latter case, Mr. Justice Black spoke for seven members of the Court: The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and" }, { "docid": "16579333", "title": "", "text": "aliens, like permanent citizens, must be treated consistently with the equal protection and due process clauses of the Constitution. See Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 2391, 72 L.Ed.2d 786 (1982); Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886); see also Noel v. Chapman, 508 F.2d 1023, 1028 (2d Cir.) (applying equal protection guarantee to deportation proceedings), cert. denied, 423 U.S. 824, 96 S.Ct. 37, 46 L.Ed.2d 40 (1975). Moreover, “classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a ‘discrete and insular’ minority for whom such heightened judicial solicitude is appropriate.” Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971) (quoting United States v. Carotene Prods. Co., 304 U.S. 144, 152-53 n. 4, 58 S.Ct. 778, 783-84 n. 4, 82 L.Ed. 1234 (1938)). Nonetheless, [wjhen legally admitted, [aliens] have come at the Nation’s invitation, as visitors or permanent residents, to share with us the opportunities and satisfactions of our land.... So long, however, as aliens fail to obtain and maintain citizenship by naturalization, they remain subject to the plenary power of Congress to expel them under the sovereign right to determine what noncitizens shall be permitted to remain within our borders. Carlson v. Landon, 342 U.S. 524, 534, 72 S.Ct. 525, 531, 96 L.Ed. 547 (1952). Since it is the business of the political branches to regulate the conditions of entry and residence of aliens, the Supreme Court is reluctant to question the exercise of congressional judgment concerning aliens. Mathews v. Diaz, 426 U.S. 67, 84, 96 S.Ct. 1883, 1893, 48 L.Ed.2d 478 (1976). Thus, “the Court has adopted a stance of minimal scrutiny respecting federal regulations that contain alienage-based classifications,” United States v. Duggan, 743 F.2d 59, 76 (2d Cir.1984) (citing Mathews, 426 U.S. at 78-81, 96 S.Ct. at 1890-92), and a federal statute relating to the conditions of an alien’s residence in, or expulsion from, the United States will" }, { "docid": "18289262", "title": "", "text": "the power of foreign nations. But see, L. Tribe, American Constitutional Law Section 5-16, at 283-84 (1978) (positivist theory of sovereignty, rooted in international law and not the Constitution, is erroneous); Levi-tan, The Foreign Relations Power: An Analysis of Mr. Justice Sutherland’s Theory, 55 Yale L.J. 467, 497 (1946) (no place for theory of “inherent” powers in American constitutional system). The exclusive federal control over foreign affairs in general and over immigration policy in particular is conceded by Defendants. They argue only that their action was not intended to and, in fact, cannot have any effect on such matters. I disagree, and hold that Regents’ action is preempted by federal control in this area. The treatment of aliens has consistently been viewed as a national concern, subject to federal, and not state, supervision. Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 420, 68 S.Ct. 1138, 1143, 92 L.Ed. 1478 (1948); Hines v. Davidowitz, 312 U.S. 52, 73, 61 S.Ct. 399, 407, 85 L.Ed. 581 (1941). The preemption doctrine, usually applied in analyses involving interstate commerce, has also been employed with equal protection principles in invalidating state restrictions against aliens. Examining Board v. Flores de Otero, supra, 426 U.S. at 602, 96 S.Ct. at 2281; Graham v. Richardson, supra, 403 U.S. at 376-380, 91 S.Ct. at 1854-56; Truax v. Raich, 239 U.S. 33, 42, 36 S.Ct. 7, 11, 60 L.Ed. 131 (1915). It is true that not every state action which adversely affects the activities of aliens in this country is preempted by federal authority. De Canas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976) (state may exercise police power to prohibit employer from knowingly employing illegal aliens); Clark v. Allen, 331 U.S. 503, 516-17, 67 S.Ct. 1431, 1438-39, 91 L.Ed. 1633 (1947) (state may make rights to succession of property by aliens dependent on existence of reciprocal right in foreign country); but see, Zschernig v. Miller, 389 U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683 (1968) (application of similar state probate statute constitutes intrusion into field of foreign affairs). In fact, NMSU imposes restrictions on" }, { "docid": "13555781", "title": "", "text": "law is substantially related to an important government interest. City of Cleburne, 473 U.S. at 440-41, 105 S.Ct. at 3254-55. This is known as the heightened or mid-level scrutiny test. However, if Congress enacts a law that does not affect a fundamental right or a suspect (or semi-suspect) classification, the government only needs to show that the law is rationally related to a legitimate governmental purpose. Village of Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S.Ct. 1536, 1540, 39 L.Ed.2d 797 (1974); City of Cleburne, 473 U.S. at 440, 105 S.Ct. at 3254. This is known as the rational basis test. B. Federal vs. State Regulation of Aliens Pursuant to Article I, Section 8 of the United States Constitution, Congress has been granted the power “To establish an uniform Rule of Naturalization.” The United States Supreme Court has broadly interpreted this power to include the authority to regulate not only the conditions of entry and residence of aliens, but also the conduct of aliens in the country. See Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013, aff'd, 214 U.S. 344, 29 S.Ct. 678, 53 L.Ed. 1024 (1909) (over no conceivable subject is the legislative power of Congress more complete than it is over immigration); see Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 1891, 48 L.Ed.2d 478 (1976) (holding that Congress’ broad power over naturalization and immigration encompasses the power to condition an alien’s eligibility for participation in a federal medical insurance program); Graham v. Richardson, 403 U.S. 365, 377, 91 S.Ct. 1848, 1854, 29 L.Ed.2d 534 (1971) (quoting Takahashi v. Fish & Game Comm’n., 334 U.S. 410, 419, 68 S.Ct. 1138, 1142, 92 L.Ed. 1478 (1948)). Given Congress’ plenary power over immigration, the courts have uniformly held that federal laws which regulate aliens must only be rationally related to a legitimate governmental purpose in order to withstand scrutiny. Mathews, 426 U.S. at 83, 96 S.Ct. at 1893; Moving Phones Partnership v. Federal Communications Commission, 998 F.2d 1051, 1056 (D.C.Cir.1993), cert. den. sub. nom., Cellswitch v. FCC," }, { "docid": "23199212", "title": "", "text": "test (state classifications based on alienage, see Bernal v. Fainter, — U.S. -, 104 S.Ct. 2312, 2316, 81 L.Ed.2d 175 (1984); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971)), or the intermediate level of scrutiny (state laws discriminating against illegal aliens, see Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)) should apply. We hold otherwise. Our foundation is that federal authority in the areas of immigration and naturalization is plenary. See Fiallo v. Bell, 430 U.S. 787, 794-96, 97 S.Ct. 1473, 1479-80, 52 L.Ed.2d 50 (1977); Mathews v. Diaz, 426 U.S. 67, 81-82, 96 S.Ct. 1883, 1892, 48 L.Ed.2d 478 (1976); Takahashi v. Fish & Game Commission, 334 U.S. 410, 419, 68 S.Ct. 1138, 1142, 92 L.Ed. 1478 (1948); U.S. Const. art. I, § 8, cl. 4. Judicial review of the decisions made by the political branches is fairly narrow. Mathews, 426 U.S. at 81-82, 96 S.Ct. at 1892; Harisiades v. Shaughnessy, 342 U.S. 580, 588-89, 72 S.Ct. 512, 518-19, 96 L.Ed. 586 (1952). Accordingly, federal classifications based on alienage are subject to relaxed scrutiny. See Nyquist v. Mauclet, 432 U.S. 1, 7 n. 8, 97 S.Ct. 2120, 2124 n. 8, 53 L.Ed.2d 63 (1977); Mow Sun Wong v. Campbell, 626 F.2d 739, 744 n. 10 (9th Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1419, 67 L.Ed.2d 384 (1981). Federal classifications distinguishing among groups of aliens thus are valid unless “wholly irrational.” Mathews, 426 U.S. at 83, 96 S.Ct. at 1893. No one contends that the classification at issue here is “wholly irrational.” It is true, of course, that states lack similar powers over immigration. Takahashi, 334 U.S. at 419, 68 S.Ct. at 1142. “The Fourteenth Amendment and the laws adopted under its authority thus embody a general policy that all persons lawfully in this country shall abide ‘in any state’ on an equality of legal privileges with all citizens under non-discriminatory laws.” Id. at 420, 68 S.Ct. at 1143. To justify a law disadvantaging aliens — like any law discriminating against a “suspect class” — a state must" }, { "docid": "13555782", "title": "", "text": "Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013, aff'd, 214 U.S. 344, 29 S.Ct. 678, 53 L.Ed. 1024 (1909) (over no conceivable subject is the legislative power of Congress more complete than it is over immigration); see Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 1891, 48 L.Ed.2d 478 (1976) (holding that Congress’ broad power over naturalization and immigration encompasses the power to condition an alien’s eligibility for participation in a federal medical insurance program); Graham v. Richardson, 403 U.S. 365, 377, 91 S.Ct. 1848, 1854, 29 L.Ed.2d 534 (1971) (quoting Takahashi v. Fish & Game Comm’n., 334 U.S. 410, 419, 68 S.Ct. 1138, 1142, 92 L.Ed. 1478 (1948)). Given Congress’ plenary power over immigration, the courts have uniformly held that federal laws which regulate aliens must only be rationally related to a legitimate governmental purpose in order to withstand scrutiny. Mathews, 426 U.S. at 83, 96 S.Ct. at 1893; Moving Phones Partnership v. Federal Communications Commission, 998 F.2d 1051, 1056 (D.C.Cir.1993), cert. den. sub. nom., Cellswitch v. FCC, 511 U.S. 1004, 114 S.Ct. 1369, 128 L.Ed.2d 46 (1994); Abreu v. Callahan, 971 F.Supp. 799, 1997 WL 414113, *11 (S.D.N.Y.1997). In arguing for a rational basis test, defendants rely primarily on Mathews. In this case, the Court upheld federal regulations which excluded aliens from participation in the Medicare Part B supplemental medical insurance program unless the alien had been admitted for permanent residence and had resided in the United States for at least 5 years. Mathews, 426 U.S. at 69, 96 S.Ct. at 1886. The Court found that these federal requirements were valid restrictions on aliens since neither requirement was “wholly irrational”. Mathews, 426 U.S. at 84, 96 S.Ct. at 1893. In reaching its decision, the Court noted that the classifications created by the federal government distinguished be tween different groups of aliens, not just between citizens and aliens. Mathews, 426 U.S. at 80, 96 S.Ct. at 1892. The Court found that Congress could create sub-classes within the alien population for the purpose of determining Medicaid eligibility requirements. Mathews, 426 U.S. at 82-83, 96" }, { "docid": "3293315", "title": "", "text": "satisfied that the Government has a compelling state interest sufficient to uphold the statute as constitutional, there is another reason why aliens may be excluded from federal juries. Under Article I, section 8, clause 4 of the Constitution, Congress is granted the power “to establish an uniform Rule of Naturalization.” This specific grant of authority vests in Congress the plenary, unqualified power to determine which aliens shall be admitted to this country, the period they may remain, and the terms and conditions of their naturalization. Graham v. Richardson, supra, 403 U.S. at 377, 91 S.Ct. at 1854; Takahashi v. Fish and Game Comm’n, supra, 334 U.S. at 419, 68 S.Ct. at 1142; Hines v. Davidowitz, 312 U.S. 52, 66, 61 S.Ct. 399, 403, 85 L.Ed. 581 (1941); see also Harisiades v. Shaughnessy, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1950). The plenary authority to admit or exclude aliens necessarily permits Congress to place certain conditions on an alien’s right of entry or continued residence. Silverman v. Rogers, 1 Cir., 1970, 437 F.2d 102, 107, cert. denied, 402 U.S. 983, 91 S.Ct. 1667, 29 L.Ed.2d 149; see Perdido v. I.N.S., 5 Cir., 1969, 420 F.2d 1179, 1181. While resident aliens are entitled to the full protection of this country’s laws, until they obtain and maintain citizenship by naturalization they are subject to the plenary authority of Congress’ immigration and naturalization powers. Carlson v. Landon, 342 U.S. 524, 534, 72 S.Ct. 525, 531, 96 L.Ed. 547 (1952). Thus, while most state classifications based on alienage are inherently suspect, Graham v. Richardson, In re Griffiths, Sugarman v. Dougall, Takahashi v. Fish and Game Comm’n, supra, the same is not true of all such federal classifications where Congress’ plenary authority in the field of immigration is involved. Although Congress may not single out aliens for discriminatory treatment in matters not related to the furtherance of its naturalization responsibilities, Ramos v. United States Civil Service Comm’n, D.P.R., 1974, 376 F.Supp. 361, 366 (three-judge court), Congress has" } ]

[ { "docid": "19075079", "title": "", "text": "file his motion to dismiss until October 22, 1997, after the 45-day plan objection period as outlined in LR 3015-2(D)(1) had passed. On its face, LR 3015-2(D)(1) is not applicable to motions to dismiss; the text speaks only of objections to plan confirmation. The court has found no cases that directly address the issue. Similarly, the bankruptcy code and rules do not place time limits on filing a motion to dismiss based on eligibility. Nowhere in 11 U.S.C. § 1307(c) is a time limit set for filing a motion to dismiss, nor is there a time limit set in 11 U.S.C. § 109(e) for determining eligibility. There are several cases, however, that address the validity of a motion to dismiss after a chapter 13 plan has been confirmed, finding that confirmation may be res judicata to eligibility issues raised thereafter. See In re Nikoloutsos, 199 B.R. 624 (Bankr.E.D.Tex.1996) (motion to dismiss filed three months after confirmation untimely); Jones v. U.S. (In re Jones), 134 B.R. 274 (N.D.Ill.1991) (motion to dismiss filed nineteen months after confirmation and ten months after discharge untimely); c.f. Franklin Federal Bancorp., FSB v. Lochamy (In re Lochamy), 197 B.R. 384 (Bankr.N.D.Ga.1995) (although motion to dismiss filed five days before confirmation, creditor’s failure to raise or preserve the motion at the confirmation hearing waived right to litigate eligibility under § 109(e)). However these eases are not similar to the situation before this court. In In re Nikol-outsos and In re Jones the creditor failed to file its motion to dismiss until after plan confirmation. In In re Lochamy where the motion to dismiss was filed only five days before the confirmation hearing, the plan was confirmed following, hearing where the creditor failed to raise the eligibility issue. The courts in those situations found that the creditors “sle[pt] on their rights,” In re Nikoloutsos, 199 B.R. at 627; In re Lochamy, 197 B.R. at 387, and “had ample opportunities to contest Debtors’ eligibility but failed to do so in a timely fashion.” In re Jones, 134 B.R. at 279. Not so here. Moseley appeared at the September 10," } ]

[ { "docid": "15230220", "title": "", "text": "1325, the Court will address whether denial of confirmation or dismissal is the appropriate remedy under subsection (a)(7). Section 1325(a)(7) is a frequently debated subsection among the plan confirmation requirements set forth in § 1325. See e.g., In re Manno, No. 08-15588BF, 2009 WL 236844, at *7 n. 9, 2009 Bankr. LEXIS 142, at *22 n. 9 (Bankr.E.D.Pa. Jan. 30, 2009) (discussing the confusion among courts following the enactment of § 1325(a)(7) over its interaction with § 1307(c)); see also In re Soppick, 516 B.R. 733, 745 (Bankr.E.D.Pa.2014) (same). Since its enactment, there has been significant disagreement among courts as to whether § 1325(a)(7) requires dismissal of a petition not filed in good faith, and thereby incorporates the traditional § 1307(c) bad faith analysis, or whether § 1325(a)(7) and § 1307(c) are separate and distinct inquiries, the former of which only requires that a court deny confirmation of a plan upon a finding that the debtor’s action of filing a petition was not done in good faith. Compare In re Torres Martinez, 397 B.R. 158, 165 (1st Cir. BAP 2008) (implying that the obligation of a Chapter 13 debtor to commence a case in good faith now resides in § 1325(a)(7) rather than § 1307(c)), and In re Wheeler, 511 B.R. at 252 (“In light of the fact that this court has found that the Debtor filed her petition in bad faith, this finding is fatal to confirmation of any subsequent plan that the Debt- or could propose.”), and In re Manno, No. 08-15588bf, 2009 WL 236844, at *7 n. 9, 2009 Bankr.LEXIS 142, at *21-22 n. 9 (“[I]f a lack of good faith in filing a Chapter 13 petition mandates a denial of confirmation, it would appear that this defect would be irremediable. If so, a Chapter 13 case in which the debtor is unable to confirm any plan warrants dismissal under section 1307(c).”), and In re Trainor, No. 13-09818, 2014 WL 7338901, at *3, 2014 Bankr.LEXIS 5109, at *7-8 (Bankr.S.D.Ind. Dec. 22, 2014) (explaining that § 1325(a)(7) appears to be the codification of pre-BAPCPA judge-made rule from the" }, { "docid": "18516004", "title": "", "text": "declined to address the question of what effect a lack of good faith might have on the motion to dismiss. Grimes, 117 B.R. at 535. Another decision from the Ninth Circuit Court of Appeals, however, has ruled squarely on this issue. The court in Eisen v. Curry (In re Eisen), 14 F.3d 469, 470 (9th Cir.1994), made this succinct holding: “A Chapter 13 petition filed in bad faith may be dismissed ‘for cause’ pursuant to 11 U.S.C. § 1307(c).” In Eisen, a the bankruptcy court found bad faith under the “totality of circumstances” test based upon multiple filings by the debtor coupled with timing a filing in Chapter 13 to frustrate a state court action on the eve of trial, and upon misleading statements made in the debtor’s various schedules and statements of affairs. In affirming the lower courts, the Court of Appeals held without reservation that where bad faith warrants denial of confirmation of a Chapter 13 plan, so too does such bad faith warrant dismissal of the entire petition. Id. Section 1307 allows conversion or dismissal “whichever is in the best interest of creditors and the estate, for cause, including— ... (5) denial of confirmation of a plan under section 1325 of this title.” Other courts have also found lack of good faith sufficient to constitute cause for dismissal. For instance, in Gier v. Farmers State Bank of Lucas, Kansas (In re Gier), 986 F.2d 1326 (10th Cir.1993), the court upheld a bankruptcy court’s dismissal of a Chapter 13 petition under 11 U.S.C. § 1307(c). Gier, 986 F.2d at 1329 (citing the Seventh Circuit’s holding in In re Love, 957 F.2d 1350 (7th Cir.1992)). The court held that the fact finder must consider the totality of the circumstances in determining bad faith. Further, if bad faith be found, “although we agree that the rejection of a Chapter 13 plan [for lack of good faith] should not necessarily lead to dismissal, it is a factor for the bankruptcy court to consider as it determines whether to dismiss the petition pursuant to § 1307(c)” for cause. Id. Other factors present" }, { "docid": "14603645", "title": "", "text": "burden of proof under Section 1325(a). See In re Caldwell, 895 F.2d 1123, 1226 (6th Cir.1990); In re Chinichian, 784 F.2d 1440, 1443 (9th Cir.1986); In re McKissie, 103 B.R. 189, 191 (Bankr.N.D.Ill.1989) (this case focuses on whether the debtor filed a petition in bad faith; however, the court relied on Section 1325 when stating the burden of proof). The courts, however, are not in complete agreement that the debtor bears the burden of proving good faith even under Section 1325. In re Keffer, 87 B.R. 509, 514 (Bankr.S.D.Ohio 1988). More importantly, the wording of Sections 1325 and 1307 are distinguishable so that even if the debtor has the burden of proving good faith under Section 1325 it does not mean that the debtor must bear the same burden under Section 1307’s provisions. This is because Section 1325(a)(3) explicitly states that a plan shall be confirmed if it “has been proposed in good faith.” On the other hand, Section 1307(c) does not specifically require that a debtor file a petition in good faith. Instead, Section 1307(c) provides that a petition may be dismissed “for cause.” Dismissal for cause cannot mean that a debtor must show an absence of cause; it can only mean that the party moving for dismissal must demonstrate cause. In re Klein, 100 B.R. 1004, 1008 (N.D.Ill.1989). As such, the burden was on the IRS to show lack of good faith. The IRS further argues that egregious prepetition conduct, such as Love’s prepetition tax protestor conduct, gives rise to a presumption that the debtor lacked good faith when filing the Chapter 13 petition. The IRS cites In re LeMaire, 898 F.2d 1346, 1352 (8th Cir.1990) and Neufeld v. Freeman, 794 F.2d 149, 153 (4th Cir.1986) to support this proposition. It is not clear, however, that either the Court of Appeals for the Eighth or Fourth Circuits intended to create such a presumption in these decisions. In any event, for the reasons discussed below, this court will not create such a presumption. If we were to create a presumption when a debtor’s debt arose from egregious pre-petition conduct," }, { "docid": "18504858", "title": "", "text": "Powers, from the bad faith “new debtor syndrome” cases cited by Kimes as authority to dismiss the case. Mr. Kimes has offered the Court no reason why he did not object to confirmation of the plan. STATEMENT OF THE ISSUES Whether Kimes, by his failure to object to confirmation of Powers’ proposed Chapter 13 plan, waived his right to move under Section 1307(a) to dismiss Powers’ case on the ground that it was filed without good faith and for an improper purpose? Whether Debtor’s case was filed without good faith? Whether, if Debtor’s case was filed without good faith, Kimes’ motion to dismiss should be granted? Whether, if Debtor’s case was filed without good faith, Kimes’ motion for relief from the automatic stay should be granted? Whether, if Debtor’s case was filed without good faith, Kimes is entitled to recover from her and her attorney his reasonable attorney’s fees and costs incurred in ob taining the dismissal and/or relief from stay order(s)? DISCUSSION 1. Waiver of “lack of good faith” argument Powers’ primary defense to the motion to dismiss is that Kimes is not truly seeking dismissal under § 1307, but rather is attempting, belatedly, to object to confirmation of her plan under § 1325. (Powers’ Memorandum of Points and Authorities, Filed March 21,1991, P. 4, lines 6-7, P. 5-8, lines 28-16). She says: “[T]he most serious problem facing Movant, with his ‘lack of good faith’ argument, is the fact that this Motion was filed too late to test that issue,” because under § 1327(a) the terms of the confirmed plan bind both debtor and creditors. (Id. P. 5-6, lines 28-2). Powers goes so far as to assert that “[T]his Court has no jurisdiction to hear Movant’s allegations about the alleged lack of good faith_ The plan has already been confirmed without objection.” (Id. P. 8, lines 10-12, 15-16). In support of her argument Powers cites In re Szostek, 886 F.2d 1405 (3d Cir.1989), In re Gregory, 705 F.2d 1118 (9th Cir.1983), and In re Webre, 88 B.R. 242 (9th Cir. BAP 1988). These cases all stand for the proposition" }, { "docid": "18504859", "title": "", "text": "the motion to dismiss is that Kimes is not truly seeking dismissal under § 1307, but rather is attempting, belatedly, to object to confirmation of her plan under § 1325. (Powers’ Memorandum of Points and Authorities, Filed March 21,1991, P. 4, lines 6-7, P. 5-8, lines 28-16). She says: “[T]he most serious problem facing Movant, with his ‘lack of good faith’ argument, is the fact that this Motion was filed too late to test that issue,” because under § 1327(a) the terms of the confirmed plan bind both debtor and creditors. (Id. P. 5-6, lines 28-2). Powers goes so far as to assert that “[T]his Court has no jurisdiction to hear Movant’s allegations about the alleged lack of good faith_ The plan has already been confirmed without objection.” (Id. P. 8, lines 10-12, 15-16). In support of her argument Powers cites In re Szostek, 886 F.2d 1405 (3d Cir.1989), In re Gregory, 705 F.2d 1118 (9th Cir.1983), and In re Webre, 88 B.R. 242 (9th Cir. BAP 1988). These cases all stand for the proposition that if a creditor, having received notice of a Chapter 13 filing and plan confirmation hearing, fails to object to the confirmation of debtor’s plan, such failure constitutes an acceptance of the plan as confirmed, and thereafter, the order confirming the plan is res judicata as to all issues litigated and which could have been litigated. As will be seen below however, none of these cases is applicable to the question raised in our case, i.e., whether, because Powers’ plan is confirmed, Kimes is prohibited from bringing a motion to dismiss her case under § 1307. Powers first relies on Szostek, and repeats the Third Circuit’s approval of language from Collier, as follows: “[I]t is quite clear that the binding effect of a chapter 13 plan extends to any issue actually litigated by the parties and any issue necessarily determined by the confirmation order, including whether the plan complies with sections 1322 and 1325 of the Bankruptcy Code. For example, a creditor may not after confirmation assert that the plan was not filed in good" }, { "docid": "11102074", "title": "", "text": "honest effort to repay them to the best of his ability.’ ” In re Virden, 279 B.R. at 409. Shortly after the aforesaid decisions were rendered, the B.A.P. affirmed a bankruptcy court decision based on the totality of the circumstances test. Cabral v. Shamban (In re Cabral), 285 B.R. 563, 573-74 (1st Cir. BAP 2002). This Court agrees that the most appropriate means by which to determine good faith is through an examination of the totality of the circumstances. Accordingly, the Court may examine the Debtors’ prepetition and post-petition conduct and consider factors such as, inter alia, the Debtors’ history of filings, whether the Debtors only intended to defeat state court litigation, whether the Debtors’ sole motivation was to avoid payment of a single debt and whether egregious behavior was present. In re Fleury, 294 B.R. 1, 6 (Bankr.D.Mass.2003); In re Virden, 279 B.R. at 407. Additionally, according to 11 U.S.C. § 1325(b), “the court may not approve a plan unless.. .the plan provides that all of the debtor’s projected disposable income to be received in the three-year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan.” 11 U.S.C. § 1325(b)(1)(B). Closely related to the issue of whether a debtor has filed his plan in good faith is the question of whether a debtor filed his Chapter 13 petition in bad faith. In fact the distinction between 11 U.S.C. § 1307(c) and 11 U.S.C. § 1325(a)(3) is that under the former the objecting creditor bears the burden of proof whereas under the latter the debtor bears the burden. In re Dicey, 312 B.R. 456 (Bankr. D.N.H.2004). Numerous tribunals have dismissed Chapter 13 cases pursuant to 11 U.S.C. § 1307(c) as bad faith filings when the Debtor’s motivation in filing his Chapter 13 petition was to avoid payment of a singular debt. In re Virden, 279 B.R. at 410; In re Mattson 241 B.R. 629, 634 (Bankr.D.Minn.1999); In re Tornheim, 239 B.R. 677, 686-87 (Bankr.E.D.N.Y.1999); In re Ramji, 166 B.R. 288, 290 (Bankr.S.D.Tex.1993). In this case the" }, { "docid": "13955380", "title": "", "text": "93-95. Therefore, the plan in this case deserves particular scrutiny. Several Courts have found good faith on the part of Chapter 13 debtors attempting to discharge claims arising from intentional assault. See, e.g., In re Easley, 72 B.R. 948 (Bankr.M.D.Tenn.1987); In re Manes, 67 B.R. 13 (Bankr.E.D.Ark.1986). On the other hand, where wilful and malicious injury is combined with an absence of legitimate other creditors, a plan that offers minimal repayment, and a filing timed just prior to a crucial proceeding in another court, bankruptcy courts have found bad faith on the part of debtors. See, e.g., In re Cregut, 69 B.R. 21 (Bankr.D.Ariz.1986) (J. Mooreman). The Seventh Circuit has also examined the issue of pre-petition tortious conduct in the context of a Chapter 13 debtor’s good faith. In re Love, 957 F.2d 1350 (7th Cir.1992). In Love, the debtor exhibited a pattern prepetition of refusing to pay taxes and falsifying W — 4 forms. The Seventh Circuit explained that a good faith finding requires an intensive factual inquiry, and there is no presumption of bad faith where a debtor has engaged in egregious prepetition conduct. Id. at 1355. Because dismissal is a harsh remedy, the Seventh Circuit concluded that “the bankruptcy court should be more reluctant to dismiss a petition under Section 1307(c) for lack of good faith than to reject a plan for lack of good faith under Section 1325(a).” Id. Concluding that the bankruptcy judge had conducted an evidentiary hearing and carefully weighed the evidence before dismissing the Chapter 13 case for bad faith, the Seventh Circuit affirmed the dismissal in Love. Id. Several courts have adopted lists of factors to consider in evaluating a Chapter 13 debt- or’s good faith, whether in the context of a dismissal motion or plan confirmation. Factors include: 1. the nature of the debt, including whether the debt would be nondis-chargeable in a Chapter 7; 2. the timing of the petition; 3. how the debt arose; 4. the debtor’s motive in filing the petition; 5. how the debtor’s actions affected creditors; 6. the debtors’ treatment of creditors both before and after" }, { "docid": "17582894", "title": "", "text": "argues that Debtor should not be in a Chapter 13 ease because he does not have regular income. Some of Hackerman’s arguments relate to whether Debtor’s Chapter 13 petition was filed in good faith, others relate to whether the proposed plan was filed in good faith. A debtor must file a Chapter 13 petition in good faith, In re Myers, 491 F.3d 120, 125 (3d Cir. 2007), and a Chapter 13 plan cannot be confirmed unless it has been proposed in good faith, 11 U.S.C. § 1325(a)(3). Additionally, a Chapter 13 plan cannot be confirmed unless the petition was filed in good faith. 11 U.S.C. § 1325(a)(7). Courts apply the same standards when analyzing good faith when considering grounds for dismissal or conversion of a case under § 1307(c) and when evaluating a plan under the § 1325 confirmation requirements. The only distinction between the two sections of the Code is that the objecting creditor has the initial burden to demonstrate bad faith under § 1307(c), while the debtor bears the burden of showing good faith under the confirmation standards of § 1325. Sullivan v. Solimini (In re Sullivan), 326 B.R. 204, 211 (1st Cir. BAP 2005). Accordingly, both the request for conversion of the case and the objection to the plan will be analyzed together keeping the respective burdens of the parties in mind. On request of a party in interest, a Chapter 13 bankruptcy case may be converted to a case under Chapter 7 of the Bankruptcy Code or dismissed “for cause.” 11 U.S.C. § 1307(c). “‘A Bankruptcy Court has considerable discretion in determining whether ‘cause’ exists In re Monteleone, 553 B.R. 288, 293 (Bankr. W.D. Pa. 2016) (citing in re Orawsky, 387 B.R. 128, 137 (Bankr. E D. Pa. 2008)); In re Soppick, 516 B.R. 733, 745 (Bankr. E D. Pa. 2014). Although the Bankruptcy Code does not explicitly require that a Chapter 13 petition be filed in good faith, the Court of Appeals for the Third Circuit recognizes the absence of good faith or presence of bad faith as grounds for dismissal. Myers, 491 F.3d at" }, { "docid": "3893009", "title": "", "text": "the plan was proposed in good faith as required by 11 U.S.C. § 1325(a)(3). But there are no findings addressed to § 1325(a)(3), and there is no order denying confirmation. To be sure, the court’s mention of our so-called Warren decision hints that it was not persuaded of the debtor’s good faith. Nevertheless, the record does not show that the court considered the totality of the circumstances and that, as required by Warren, it “conducted] more than a ministerial review related to payments in order that it may make an informed and independent judgment concerning whether [the] plan was proposed in good faith.” Fid. & Cas. Co. of N.Y. v. Warren (In re Warren), 89 B.R. 87, 95 (9th Cir. BAP 1988). Lacking a record that would enable us to have a complete understanding of the issues, we will not review the denial of confirmation of the initial plan. See Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1223 (9th Cir.1999). Nor, if the debtor modifies her plan, would such review be useful. If, on remand, the debt- or does not proceed diligently, she may become vulnerable to dismissal or conversion based on unreasonable delay prejudicial to creditors under § 1307(c)(1). The court will be free on remand to examine the debtor’s good faith under the totality-of-the-circumstances analysis and to determine whether there is some form of “cause” that would warrant either conversion or dismissal. CONCLUSION The Bankruptcy Code contemplates in § 1307(c)(5) that chapter 13 debtors be afforded more than one opportunity to confirm a chapter 13 plan before the case is dismissed or converted following denial of plan confirmation. As one of the elements of § 1307(c)(5) “cause” was missing, mere denial of confirmation did not constitute the requisite cause. We REVERSE the order dismissing the case and REMAND for further proceedings consistent with this decision. . THE COURT: First of all, there’s an issue as to eligibility, but let’s set that aside. Tr. 6/20/05, at 2. . THE COURT: Well, first of all, in the 20 years I've been on the bench I've approved such small" }, { "docid": "11102075", "title": "", "text": "in the three-year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan.” 11 U.S.C. § 1325(b)(1)(B). Closely related to the issue of whether a debtor has filed his plan in good faith is the question of whether a debtor filed his Chapter 13 petition in bad faith. In fact the distinction between 11 U.S.C. § 1307(c) and 11 U.S.C. § 1325(a)(3) is that under the former the objecting creditor bears the burden of proof whereas under the latter the debtor bears the burden. In re Dicey, 312 B.R. 456 (Bankr. D.N.H.2004). Numerous tribunals have dismissed Chapter 13 cases pursuant to 11 U.S.C. § 1307(c) as bad faith filings when the Debtor’s motivation in filing his Chapter 13 petition was to avoid payment of a singular debt. In re Virden, 279 B.R. at 410; In re Mattson 241 B.R. 629, 634 (Bankr.D.Minn.1999); In re Tornheim, 239 B.R. 677, 686-87 (Bankr.E.D.N.Y.1999); In re Ramji, 166 B.R. 288, 290 (Bankr.S.D.Tex.1993). In this case the Judicial Lien Creditor argues that the Debtors did not act in good faith in proposing their Plan and thus asserts their Plan is not confirmable pursuant to 11 U.S.C. § 1325(a)(3). The Judicial Lien Creditor has not, either in open court or in any of his written submissions, suggested that the Chapter 13 petition itself was filed in bad faith, an allegation which, if proven, would lead to dismissal of the Debtors’ Chapter 13 case. As such, at this time the Court must limit its determination to whether the Debtors met their burden of proving that their proposal of a single creditor Chapter 13 Plan was made in good faith. Nevertheless, the Court has the power to, and will, issue an order to show cause why the case should not be dismissed for lack of a good faith filing. 11 U.S.C. § 105(a); In re Fleury, 294 B.R. at 5. The Debtors filed their Chapter 7 petition on June 29, 2000 and shortly thereafter sought to voluntarily dismiss it to seek “relief in the state" }, { "docid": "15230219", "title": "", "text": "now seek full satisfaction of the debt from Debtor alone, Debtor’s reticence in dealing with Creditors and. her unwillingness to satisfy this debt is understandable, although not condoned. Debtor should not be saddled with this debt into perpetuity and should be provided an opportunity to address her responsibilities in repaying it. Further, not only has Debtor never sought bankruptcy protection prior to filing the instant case, she has proposed a plan term longer than that required of a below median debtor and contributed exempt funds. Therefore, although Debtor’s efforts to repay Creditors’ Claim must be improved as discussed herein, based on the facts of this case, the Court finds that Debtor had a sound and proper purpose for seeking bankruptcy protection' and her action in filing her petition was done in good faith1 as required by § 1325(a)(7). Although the Court need not do so as a result of its finding in favor of Debtor under § 1325(a)(7), given the split in case law and Creditors’ request to have Debt- or’s case dismissed under § 1325, the Court will address whether denial of confirmation or dismissal is the appropriate remedy under subsection (a)(7). Section 1325(a)(7) is a frequently debated subsection among the plan confirmation requirements set forth in § 1325. See e.g., In re Manno, No. 08-15588BF, 2009 WL 236844, at *7 n. 9, 2009 Bankr. LEXIS 142, at *22 n. 9 (Bankr.E.D.Pa. Jan. 30, 2009) (discussing the confusion among courts following the enactment of § 1325(a)(7) over its interaction with § 1307(c)); see also In re Soppick, 516 B.R. 733, 745 (Bankr.E.D.Pa.2014) (same). Since its enactment, there has been significant disagreement among courts as to whether § 1325(a)(7) requires dismissal of a petition not filed in good faith, and thereby incorporates the traditional § 1307(c) bad faith analysis, or whether § 1325(a)(7) and § 1307(c) are separate and distinct inquiries, the former of which only requires that a court deny confirmation of a plan upon a finding that the debtor’s action of filing a petition was not done in good faith. Compare In re Torres Martinez, 397 B.R. 158," }, { "docid": "6572449", "title": "", "text": "distinguished between good faith in filing the petition and good faith in proposing the plan. Madison Hotel is a chapter 11 reorganization case in which the debtor’s good faith was challenged at the time it filed its petition, before it had proposed a plan. The bankruptcy court considered the debtor’s prefiling conduct when it made its “good faith” inquiry in deciding whether to dismiss the petition (as opposed to whether to confirm the plan). The bankruptcy court expressly found no lack of good faith in the initial filing. The bankruptcy court subsequently looked at other factors relevant to good faith in confirming the plan. A debtor’s \"pre-petition” and \"pre-plan” conduct could theoretically satisfy the same good faith test. The problem here is that, in contrast to Madison Hotel, the bankruptcy court did not make an adequate finding of good faith at either the petition or the plan stage. ****** In the case cited by the district court for a distinction between plans and petitions, In re Kopfstein, 35 B.R. 656 (Bankr.N.D.Oh.1983), the bankruptcy court applied the same standards on motion to dismiss the petition, those of Memphis Bank v. Whitman, 692 F.2d 427 (6th Cir.1982), that it would have applied to an opposition to confirmation of the plan. See also In re Easley, 72 B.R. 948, 953 n. 5 (Bankr.M.D.Tenn.1987). 848 F.2d at 816 n. 3. . Eleven U.S.C. § 1307 states in pertinent part: (c) Except as provided in subsection (e) of this section, on request of a party in interest or the United States Trustee and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title, or may dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause, including— ****** (5) denial of confirmation of a plan under section 1325 of this title and denial of a request made for additional time for filing another plan or a modification of a plan. 11 U.S.C. § 1307(c)(5) (1989). . That provision states: (a) As soon as practicable" }, { "docid": "11115874", "title": "", "text": "the Debtor may convert his case, but does not state that he or the Court ‘shall’ honor his request.”). The courts further explain that the statutory phrase “at any time” does not necessarily mean “under any circumstances.” See In re Ponzini, 277 B.R. at 404. Several courts have also pointed to Federal Rules of Bankruptcy Procedure 1017(2), 9013, and 2002(a)(4), which collectively require the filing of a motion to convert, notice, and a hearing, as support for the conclusion that the debtor’s conversion rights under § 706(a) are not absolute. See, e.g., Id. at 405. The Sixth Circuit Court of Appeals has not addressed this particular issue. However, in a situation that is somewhat analogous, the Sixth Circuit recently held that the bankruptcy court may dismiss a debt- or’s chapter 13 petition if the court finds that the petition was not filed in good faith. Alt v. United States (In re Alt), 305 F.3d 413 (6th Cir.2002). In Alt, the debtor had given answers at a deposition that the bankruptcy court described as “laughable at best, fraudulent and criminal at worst” and had failed to schedule a $305,086 tax debt to the IRS on her chapter 13 petition. The Sixth Circuit affirmed the bankruptcy court’s dismissal of the chapter 13 case, finding that the debtor’s bad faith constituted sufficient “cause” for dismissal under § 1307(c). Expounding on the good faith standard, the Sixth Circuit explained that, as it is applied in the plan confirmation context, “ ‘[o]ur circuit’s good faith test requires consideration of the totality of circumstances.’ ” Id. at 419 (quoting Society Nat’l Bank v. Barrett (In re Barrett), 964 F.2d 588, 591 (6th Cir.1992)). The court further stated that “[w]hether the debtor has been forthcoming with the bankruptcy court and the creditors is properly considered in deciding whether dismissal for lack of good faith is appropriate.” Id. at 421. If a chapter 13 petition may be dismissed for lack of good faith, it is logical to conclude that conversion from chapter 7 to chapter 13 may also be denied in the absence of good faith. See In" }, { "docid": "1293456", "title": "", "text": "confirmation of a chapter 13 plan, that revocation must be sought within 180 days. § 1330(a). Also, as the Debtor argues, there is authority to the effect that if the basis for dismissal of a case arose before confirmation of the plan, and no motion to dismiss is filed until after confirmation, res judicata may bar dismissal. Section 1307(c) provides that “on request of a party in interest or the United States trustee and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title, or may dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause ...” 11 U.S.C. § 1307(c). In addition to ineligibility under Section 109(c), lack of good faith in the filing of a chapter 13 petition is sufficient cause for dismissal of the case. In re Love, 957 F.2d 1350, 1354 (7th Cir. 1992). Where the amount claimed by a creditor is known by a debtor, but not disclosed in bankruptcy schedules, there is a question as the debtor’s good faith. See In re Redburn, 193 B.R. 249, 256 (Bankr. W.D.Mich.1996). Section 1327(a), however, provides that “[t]he provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan.” 11 U.S.C. § 1327(a). As a general rule, a creditor’s failure to raise an objection at a confirmation hearing or to appeal from the order of confirmation will preclude the creditor from challenging the legality of the plan or its provisions at a later point in time. In re Chappell, 984 F.2d 775, 782 (7th Cir. 1993); In re Szostek, 886 F.2d 1405, 1410 (3d Cir.1989); Strong v. United States (In re Strong), 203 B.R. 105, 113 (Bankr. N.D.Ill.1996); In re Puckett, 193 B.R. 842, 845-46 (Bankr.N.D.Ill.1996). Were objections of this nature not precluded, creditors would be permitted an end run around the 180-day limit on" }, { "docid": "15927508", "title": "", "text": "conversion in the first place. Id. (citing Finney v. Smith (In re Finney), 141 B.R. 94 (E.D.Va.1992), aff'd, 992 F.2d 43 (4th Cir.1993)). Both statutes are discussed below. B. Section 1307(c). Section 1307(c) provides that on request by a party-in-interest, after notice and a hearing, the court may dismiss a case under Chapter 13 or convert the case to a Chapter 7 case, whichever is in the best interests of the creditors and the estate, for cause. The statute enumerates a non-exclusive list of reasons including: (i) unreasonable delay by the debtor that is prejudicial to the creditors, 11 U.S.C. § 1307(c)(1); (ii) failure to commence making timely payments under § 1326, 11 U.S.C. § 1307(c)(4); and (iii) denial of confirmation of a plan under § 1325, 11 U.S.C. § 1307(c)(5). Although lack of good faith is not specifically enumerated as “cause,” it is well established that lack of good faith (or bad faith) is “cause” for dismissal or conversion of a Chapter 13 case under § 1307(c). See Ho v. Dowell, 274 B.R. at 877; see also Leavitt, 171 F.3d at 1224. The obligation of good faith is imposed on the debtor at two stages of a Chapter 13 proceeding. First, the debtor must file her Chapter 13 petition in good faith. See In re Love, 957 F.2d 1350, 1354-55 (7th Cir.1992). Second, the debt- or must file her Chapter 13 plan in good faith. See id.; see also 11 U.S.C. § 1325(a)(3). The term “good faith” is not defined, and, therefore, the good faith inquiry is a “fact intensive determination better left to the discretion of the bankruptcy court.” Love, 957 F.2d at 1355. Courts differ in their approach in determining a debtor’s good faith, but the majority favor a totality of the circumstances analysis. See, e.g., Leavitt, 171 F.3d at 1224 (bad faith as cause for dismissal of Chapter 13 petition involves application of a totality of the circumstances test); Ho v. Dowell, 274 B.R. at 879 (“[A]ny finding of § 1307(c) ‘cause’ would require a totality of the circumstances analysis followed by, if ‘cause’ is found," }, { "docid": "12335832", "title": "", "text": "is improper procedure, because dismissal first requires revocation of a confirmed Chapter 13 Plan pursuant to 11 U.S.C. § 1330, and that requires an adversary proceeding under Rule 7001(5). Otherwise, Gress contends the Trustee failed to prove fraud, that Wood’s income was minimal and would not have any effect on confirmation after she moved out, and that the proposed modification is proper. Turning first to Gress’s procedural objection, the Court does not consider the Trustee’s motion to dismiss for bad faith improper procedure. In re Hoppel, 203 B.R. 730 (Bankr.D.Mont.1997), involved a creditor’s motion to revoke confirmation on the grounds the debtors obtained a creditor’s consent to confirmation by fraud. 203 B.R. at 731. By contrast the Trustee’s motion cites § 1325(a)(3) for lack of good faith, not § 1330. Rule 7001 does not list a proceeding to dismiss for lack of good faith among the proceedings which are adversary proceedings. Thus it is a contested matter brought by motion, F.R.B.P. 9014. Gress’s procedural objection is not well taken, and the Court will analyze Gress’s good faith under § 1325(a)(3), which applies to modification. § 1329(b)(1). II. Dismissal for Bad Faith. “To determine if a petition has been filed in bad faith courts are guided by the standards used to evaluate whether a plan has been proposed in bad faith. 11 U.S.C. § 1325(a)(3)”. In re Eisen, 14 F.3d 469, 470 (9th Cir.1994). In both instances the court must review the “totality of the circumstances”. Id.; In re Leavitt, 171 F.3d 1219, 1224-25 (9th Cir.1999). The Ninth Circuit Court of Appeals addressed dismissal of a Chapter 13 case on the basis of bad faith in: Although not specifically listed, bad faith is a “cause” for dismissal under § 1307(c). [In re Eisen, 14 F.3d 469, 470 (9th Cir.1994)] (“A Chapter 13 petition filed in bad faith may be dismissed ‘for cause’ pursuant to 11 U.S.C. § 1307(c).”); [In re Hopkins, 201 B.R. 993, 995 (D.Nev.1996)] (holding that the debtors’ filing of frivolous tax returns with no intention to pay taxes warranted dismissal of a Chapter 13 petition for bad faith)." }, { "docid": "3826079", "title": "", "text": "the debtor is unable to do so, the case may be dismissed under § 1307(c)(5). While the confirmation requirements have, since enactment of the Code, always required a debtor to show that a chapter 13 plan is “proposed in good faith ...,” see 11 U.S.C. § 1325(a)(3), it was not until the adoption of BAPCPA in 2005 that a debt- or was also required to demonstrate that “the action of the debtor in filing the petition was in good faith” to achieve confirmation. 11 U.S.C. § 1325(a)(7). However, even prior to BAPCPA, a chapter 13 case could be dismissed when it was demonstrated to the court that the case was filed in bad faith or as an attempt to unfairly manipulate the Code. See e.g., Leavitt v. Soto (In re Leavitt), 171 F.3d 1219 (9th Cir.1999); Risen v. Curry (In re Eisen), 14 F.3d 469 (9th Cir.1994); In re James, 260 B.R. 498 (Bankr.D.Idaho 2001). A. Good Faith Standard. Because BAPCPA effectively codified the good faith filing requirement previously employed in the case law, that case law is applicable to any analysis of § 1325(a)(7). And while this chapter 13 case is not before the Court at this time to determine whether Debtors’ plan should be confirmed, if the Court decides Debtors did not file their petition in good faith, they will, as a result, be unable to confirm any plan. Thus, it is appropriate for the Court to evaluate Debtors’ motives in resolving Trustee’s motion to dismiss. “Bankruptcy courts must determine a debtor’s good faith on a case-by-case basis, taking into account the particular features of each Chapter 13 plan.” In re Yochum, 96.2 I.B.C.R. 77, 78 (Bankr.D.Idaho 1996) (citing In re Porter, 102 B.R. 773, 775 (9th Cir. BAP 1989)). In addition, “[t]he bankruptcy court must consider the totality of the circumstances, including prepetition conduct, in deciding whether the debtor has ‘acted equitably.’ ” In re Tucker, 989 F.2d 328, 330 (9th Cir.1993) (emphasis supplied); see also In re Bowen, 349 B.R. 814, 816 (Bankr.D.Idaho 2005); In re Yochum, 96.2 I.B.C.R. at 78. Debtors bear the burden of" }, { "docid": "18023641", "title": "", "text": "for the exclusive benefit of the Trustee and the Debtors’ attorney. The Creditor contends that the sole reason the Debtors have filed for Chapter 13 protection is to avoid payment of his judgment. He states that the bankruptcy was filed less than a month after the jury verdict and that no other creditors were pursuing the Debtors at the time. The Creditor believes that the Debtors’ Plan was not filed in good faith and should not be confirmed. The Debtors assert that they are merely taking advantage of the Chapter 13 discharge that Congress has afforded them. III. DISCUSSION One of the statutory requirements for a Chapter 13 debtor is that he or she must propose a payment plan that satisfies the list of requirements found in section 1325(a). Specifically, section 1325(a)(3) requires that the plan be proposed in “good faith.” However, the Bankruptcy Code itself never defines good faith. Not surprisingly, absent a statutory definition, the meaning of the term good faith has been the subject of extensive litigation. Without legislative guidance, the courts have developed their own system of determination. The issue of good faith manifests itself in two instances within a Chapter 13 proceeding. First, pursuant to section 1307(c) the court may dismiss a case or convert it for cause. A lack of good faith or bad faith filing has been found to constitute cause for conversion or dismissal. Second, in order to be confirmed, a Chapter 13 plan must be proposed in good faith. As explained by Judge Kenner in In re Virden, 279 B.R. 401, 407 (Bankr.D.Mass. 2002), the same standard for finding good, or bad, faith may properly be used in both instances, the only distinction being who bears the burden of proof. Under section 1307(c), an objecting creditor bears the burden of proof, while under section 1325(a)(3), it is a debtor. Id. And when a debtor seeks the Chapter 13 discharge to discharge debt that would remain undischarged in a Chapter 7, that burden is especially heavy. Id. (citing In re Leavitt, 209 B.R. 935, 940 (9th Cir. BAP 1997); In re Haskell," }, { "docid": "16957528", "title": "", "text": "(Bankr.N.D.Ill. 1997). In this case, as discussed, the Court concludes that the debt is liquidated. Further, even based on the unsecured amounts shown by the IRS in the original proof of claim and the Debtor’s scheduled unsecured debts on his Schedules E and F, the Debtor is over the eligibility limits of § 109(e) by several thousand dollars. Another issue relates to the amount of time that has elapsed between the date of filing of the petition and the date of filing of the motion to dismiss by the United States. In considering this factor, courts have considered jurisdictional issues, explanations for the delay, and waivers. See, for example, In re Sullivan, 245 B.R. 416 (N.D.Fla.1999). The bankruptcy courts that have looked at this issue appear to rely on whether a plan had already been confirmed, as opposed to the amount of time that had elapsed, in deciding whether to grant the motion to dismiss. See In re Nicholes, 184 B.R. 82, 87 (9th Cir. BAP 1995), In re Elstien, 238 B.R. 747, 754 (Bankr.N.D.Ill.1999), In re Setelin, 218 B.R. 818, 820-21 (Bankr. E.D.Va.1998), and In re Lamar, 111 B.R. 327, 330 (D.Nev.1990). In this case, the examination and audit of the Debtor’s returns continued after the date of the petition, the parties were conferring post petition to reach a resolution, (see transcript of the hearing held September 7, 2000, at page 11), and the plan has not been confirmed. The Court concludes that it remains appropriate to consider the Motion to Dismiss. Two cases should be noted which have held that a disputed IRS debt is unliqui-dated. United States v. May, 211 B.R. 991 (M.D.Fla.1997) is an opinion from Judge Sharp which affirmed the bankruptcy court decision to deny the motion to dismiss a Chapter 13 case by the IRS based on the debtors’ ineligibility due to an unsecured tax liability of $803,401.76. The tax liability related to an assessment involving interest deductions derived from alleged tax shelter programs. Judge Sharp’s decision affirmed the bankruptcy court’s determination that the debt was unliquidated. The District Court noted that several tax" }, { "docid": "18526345", "title": "", "text": "the date set for the hearing, September 27, 1995. The bankruptcy judge was not required to wait more than 100 days while debtor attempted to procure new counsel. No case has been cited where the court has been found to have abused its discretion where a civil plaintiff is given that length of time to procure new counsel. Under the circumstances present in this case the bankruptcy judge’s denial of a continuance is not so arbitrary as to violate debtors’ due process rights. Came Under Section 1307 11 U.S.C. § 1307 provides that on request by a party-in-interest, after notice and a hearing, the Court may dismiss a case under Chapter 13 or convert the ease to a Chapter 7, whichever is in the best interests of the creditors and the estate, for cause. The statute enumerates a non-exclusive list of reasons including: (1) unreasonable delay by the debtor that is prejudicial to the creditors (section 1307(c)(1)); (2) denial of confirmation of a plan under section 1325 of this title and (3) denial of a request made for additional time for filing another plan or a modification of a plan (section 1307(c)(5)). Debtors argue that the bankruptcy court’s finding of cause due to unreasonable delay prejudicial to creditors Rivera Cruz and his wife; denial of confirmation of a plan and the implicit finding that the petition was filed in bad faith, are not supported by the record. The Court reviews the bankruptcy court’s decision to dismiss the Chapter 13 petition for an abuse of discretion, but the Court reviews the facts underlying the decision under a “clearly erroneous” standard. In re Bistrian, 184 B.R. 678, 685 (E.D.Pa.1995), citing Bankruptcy Rule 8013; In re Beatty, 162 B.R. 853, 855 (9th Cir. BAP 1994); and Whittaker v. Philadelphia Elec. Co., 92 B.R. 110, 111 (E.D.Pa.1988), aff'd 882 F.2d 791 (3rd Cir.1989). “The bankruptcy court’s good faith finding is a purely factual finding evaluated under the clearly erroneous standard of review.” Matter of Love, 957 F.2d 1350, 1354 (7th Cir.1992). The Seventh Circuit observed: The clearly erroneous standard requires this Court to give" } ]

[ { "docid": "21551883", "title": "", "text": "challenge to his Section 924(c)(1) firearms conviction — that there was insufficient proof that a firearm was actually used during George Medina’s kidnapping — merits scant attention. George Medina gave an eyewitness account of what he saw — “He pushed my arm away and he told me not to act stupid, and he showed me that he had a gun through his shirt.... He let the handle stick out and I could see the form of it through his shirt.” This evidence was more than sufficient because, contrary to appellant’s argument, the government was not obliged to produce an actual firearm as evidence at trial. See United States v. Harris, 792 F.2d 866, 868 (9th Cir.1986); see also United States v. Gregg, 803 F.2d 568, 571 (10th Cir.1986), cert. denied, 480 U.S. 920, 107 S.Ct. 1379, 94 L.Ed.2d 693 (1987). Patino also claims that the government impermissibly constructively amended the indictment during rebuttal summation, when it argued that the weapons mentioned in the firearms count included not only the gun George Medina saw when abducted on November 4,1990, but also the three additional guns distributed by Osorio and recovered after the arrests on November 11,1990. Patino argues that Count Six of the indictment charged him with using a gun only at the time of George Medina’s abduction, and, therefore, the prosecutor impermissibly expanded the indictment in referring to the three additional weapons. An indictment is constructively amended when the proof at trial broadens the basis of conviction beyond that charged in the indictment. United States v. Miller, 471 U.S. 130, 144-45, 105 S.Ct. 1811, 1819-20, 85 L.Ed.2d 99 (1985). Constructive amendment of an indictment is a per se violation of the grand jury clause of the Fifth Amendment. United States v. Zingaro, 858 F.2d 94, 98 (2d Cir.1988). However, an impermissible alteration of the charge must affect an essential element of the offense, United States v. Weiss, 752 F.2d 777, 787 (2d Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 285 (1985), and we have “consistently permitted significant flexibility in proof, provided that the defendant was given" } ]

[ { "docid": "16102022", "title": "", "text": "theories as to the interstate commerce element of the case, but one of those theories had never been passed on by the grand jury. Noting that “it has been the rule that after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself”, id. at 216-16, 80 S.Ct. at 272, the Court reversed Stirone’s conviction because the indictment had been constructively amended at trial. Stirone, then, stands for the proposition that an indictment is constructively amended where the proof adduced at trial “broadens the basis of conviction beyond that charged in the indictment.” United States v. Patino, 962 F.2d 263, 265 (2d Cir.1992) (citing United States v. Miller, 471 U.S. 130, 144-45, 105 S.Ct. 1811, 1819-20, 85 L.Ed.2d 99 (1985)). However, a court may narrow an indictment at trial without violating the grand jury clause where “what was removed from the case was in no way essential to the offense on which the jury convicted.” Miller, 471 U.S. at 145, 105 S.Ct. at 1820. Since the constructive amendment, or broadening, of the charging instrument at trial “destroy[s] the defendant’s substantial right to be tried only on charges presented in an indictment returned by a grand jury”, Stirone, 361 U.S. at 217, 80 S.Ct. at 273, it “is a per se violation of the grand jury clause of the Fifth Amendment” where such amendment affects “an essential element of the offense”. Patino, 962 F.2d at 265-66 (citing United States v. Zingaro, 858 F.2d 94, 98 (2d Cir.1988)) Without question, the object of a conspiracy constitutes an essential element of the conspiracy offense. The statute itself provides in relevant part: 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 such persons do any act to effect the object of the conspiracy * * *. 18 U.S.C. § 371. Irene argues that the indictment’s plain language clearly demonstrates that Meir’s receipt of a green card was the" }, { "docid": "13114888", "title": "", "text": "class of substances, including controlled substance analogues like GBL. Thus, Defendants argue, the District Court’s instruction constructively amended the indictment by improperly broadening the scope of the unlawful activity from sale of narcotics to sale of controlled substances. Constructive amendment of an indictment is a serious error. This Court has held that constructive amendment of an indictment during the course of a trial is a per se violation of the Grand Jury Clause of the Fifth Amendment. United States v. Patino, 962 F.2d 263, 265-66 (2d Cir.1992). A trial court constructively amends an indictment when it broadens the basis of conviction beyond that charged in the indictment. Id. at 265. The Fifth Amendment violation entailed by such amendment is not rendered harmless by the mere fact that the defendant was not “surprised” by the change; every defendant has a right to be tried only on the charges returned by a grand jury. United States v. Roshko, 969 F.2d 1, 6 (2d Cir.1992). On the other hand, not every variance between the words of the indictment and the evidence presented at trial or the instructions given to the jury amounts to a constructive amendment. An alteration of the charge is impermissible only if it affects an “essential element” of the offense. Patino, 962 F.2d at 266. Although the case law draws a fine line between those alterations that create constitutionally impermissible amendments and those that are merely permissible variations, this case does not lie near that boundary line. Rather, Count Five of the indictment in this case is perfectly clear and was not at all altered in scope by the District Court’s instruction. Defendants’ argument is that narcotics is a narrower class than controlled substances, and therefore, to substitute the one for the other is to change the scope of the designated substance. Their premise is incorrect. Defendants are, of course, correct that the statutory definition of “narcotic drugs,” 21 U.S.C § 802(17), delineates a subset of the larger class of controlled substances. Defendants overlook the most straightforward reading of the indictment, however, which does not employ the statutory definition of" }, { "docid": "13117056", "title": "", "text": "government must prove beyond a reasonable doubt is that a Defendant knew or had reasonable cause to believe that the pseudoephed-rine would be used to manufacture some controlled substance. The jury returned to the deliberation room and, soon after, returned the following verdict: Narog was convicted on all counts; Samhan was acquitted on the conspiracies charged in Counts 1 and 2, but convicted of the substantive charges in Counts 11, 12 and 14; Aldin was found guilty on Counts 1 and 11; and Fneiche was acquitted on Count 1 and convicted on Count 11. II. All appellants contend that the district court’s response to the jury’s question constructively amended the indictment, and urge that such an amendment mandates per se reversal of their convictions. The government counters that its use of the phrase “that is, methamphetamine” in the indictment was mere surplusage, and thus no constructive amendment occurred. Alternatively, the government argues that even if the district court’s response varied from the indictment, that variance was not material and thus does not require reversal. At the forefront, it is necessary to distinguish the oft-confused concepts of variance and constructive amendment. As this Court succinctly stated in Keller: [A]n amendment occurs when the essential elements of the offense contained in the indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment. A variance occurs when the facts proved at trial deviate from the facts contained in the indictment but the essential elements of the offense are the same. United, States v. Keller, 916 F.2d 628, 634 (11th Cir.1990); see also, United States v. Flynt, 15 F.3d 1002, 1005-06 (11th Cir.1994). Whereas a variance requires reversal only when the defendant can establish that his rights were substantially prejudiced thereby, constructive amendment of the indictment is per se reversible error. Keller, 916 F.2d at 633; Flynt, 15 F.3d at 1005. We are not faced with a variance issue here. The facts proved at trial did not deviate from the facts alleged in the indictment — the grand jury charged this case as a methamphetamine case, and" }, { "docid": "19029310", "title": "", "text": "369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (reiterating Bain's holding that “an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form”). “An indictment has been constructively amended when the trial evidence or the jury charge operates to broaden the possible bases for conviction from that which appeared in the indictment.” Rigas, 490 F.3d at 225 (internal quotation marks and alterations omitted). The jury charge must not “so alter[ ] an essential element of the charge that, upon review, it is uncertain whether the defendant was convicted of conduct that was the subject of the grand jury’s indictment.” Id. at 227 (internal quotation marks omitted). A constructive amendment of an indictment is “a serious error,” United States v. Ansaldi, 372 F.3d 118, 126 (2d Cir.2004), and a per se violation of the Fifth Amendment, requiring automatic reversal, Rigas, 490 F.3d at 225-26. We reject McCourty’s constructive amendment claim because neither the trial evidence nor the jury charge altered Count Three of the Superseding Indictment. Count Three charges McCourty with only one offense of “possession of a controlled substance] with intent to distribute [the] controlled substance.” Count Three does identify two bases for this single offense; namely, the possession on one day of 5 grams or more of crack cocaine and the possession on the same day of an unspecified amount of cocaine. That the District Court distinguished the two bases of liability is of no consequence. No constructive amendment resulted when the District Court broke the single offense into two parts to be addressed by the jury. The Verdict Sheet’s identification of the apartment as the place of drug possession and the street as another location of drug possession does not alter any element of the single crime of drug possession, which occurred on May 11, 2006. Indeed, we have encouraged such special verdict sheets or interrogatories in cases where the indictment may be ambiguous. See, e.g., United States v. Sturdivant, 244 F.3d 71, 76 n. 4 (2d Cir.2001) (stating that, in a case involving" }, { "docid": "6857420", "title": "", "text": "10.) C. Constructive Amendment of the Indictment Patterson argues that because the indictment charged a drug quantity of approximately five kilograms of cocaine, but the special verdict form permitted the jury to find a lesser quantity of cocaine, the indictment was constructively amended in violation of the Fifth Amendment. “Whether a trial judge constructively amended portions of the indictment is a question of law that the Court of Appeals reviews de novo.” United States v. Trennell, 290 F.3d 881, 886 (7th Cir.2002), United States v. Pigee, 197 F.3d 879, 885 (7th Cir.1999). “No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury.” U.S. Const. amend. V. When the evidence produced at trial “goes beyond the parameters of the indictment in that it establishes offenses different from or in addition to those charged by the grand jury,” the indictment is constructively amended in violation of the Fifth Amendment. United States v. Willoughby, 27 F.3d 263, 266 (7th Cir.1994). “A constructive amendment to an indictment occurs when either the government ... the court ... or both, broadens the possible bases for conviction beyond those presented by the grand jury.” Trennell, 290 F.3d at 888 (quoting U.S. v. Cusimano, 148 F.3d 824, 829 (7th Cir.1998)). However, there is no constructive amendment when the defendant is convicted of the same offense for which he was charged in the indictment. See United States v. Pigee, 197 F.3d 879, 886 (7th Cir.1999) (holding that a variance is benign if it “does not create a risk of conviction for an uncharged offense.”); see also Trennell, 290 F.3d at 888 (“In order to rise to the level of constructive amendment, the change must establish offenses different from or in addition to those charged in the indictment.”). Here, Patterson was convicted of the same charges for which he was indicted: violations of 21 U.S.C. §§ 841(a)(1) and 846. Under § 841(a)(1), it is unlawful to knowingly “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” Section 846 extends the" }, { "docid": "6958628", "title": "", "text": "a minor role in the offenses. The district court denied the reduction based on the trial evidence. The district court adopted the PSI’s factual recitations and guidelines calculations. After considering the 18 U.S.C. § 3553(a) factors and Sanders’s mitigation arguments, the district court sentenced Sanders to concurrent sentences of 250 months’ imprisonment on his two convictions. III. DISCUSSION On appeal, Sanders raises these six errors: (1) improper jury charge that amended and broadened the indictment to include any controlled substance, (2) erroneous admission of his 1988 marijuana conviction, (3) insufficiency of the evidence, (4) wrongful denial of the motion to suppress evidence seized at the traffic stop, (5) wrongful denial of the motion to suppress his statements to the police, and (6) improper admission of co-conspirator Richards’s hearsay testimony. After review of the record, and given Sanders’s consent to the search of his tractor-trailer, we conclude that issues 3, 4, 5, and 6 wholly lack merit and do not warrant further discus sion. However, issues 1 and 2 require further consideration. A. Jury Charge and the Indictment It is well settled that a defendant enjoys a Fifth Amendment right to be tried on felony charges returned by a grand jury indictment and that only the grand jury may broaden the charges in the indictment once it has been returned. Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960). The district court may not broaden the charges by constructive amendment. Id. “A constructive amendment to the indictment occurs where the jury instructions so modify the elements of the offense charged that the defendant may have been convicted on a ground not alleged by the grand jury’s indictment.” United States v. Starke, 62 F.3d 1374, 1380 (11th Cir.1995) (quotation marks omitted). Sanders argues that the district court’s jury instructions impermissibly broadened the charges in the indictment by instructing that Sanders did “not have to know specifically the nature of the particular drug that he’s possessing, but must know that it is a controlled substance.” For the reasons explained below, we conclude that this instruction is" }, { "docid": "23609757", "title": "", "text": "amendment claim. A conviction based on cathine, rather than cathinone, would have been an impermissible constructive amendment of the indictment. See United States v. Wozniak, 126 F.3d 105 (2d Cir.1997) (holding that an instruction permitting the jury to convict on the basis of marijuana transactions, when indictment alleged only cocaine and methamphetamine transactions, was an impermissible constructive amendment of the indictment). Under Morales, the government could have charged this case as one involving either cathinone or cathine, or both. However, the government made the deliberate choice to indict Hassan with conspiring to import and possess cathinone; we assume, because it wanted to invoke the harsh penalties applicable to a Schedule I controlled substance. By making this charging decision, Hassan’s alleged intent to import and possess this Schedule I substance was critical to a conviction. See Wozniak, 126 F.3d at 109. “[A] defendant has the right to be tried only on charges contained in an indictment returned by a grand jury. An unconstitutional amendment of the indictment occurs when the charging terms are altered, either literally or constructively.” Id. (internal quotation marks and citation omitted). Constructive amendments are “per se violation[s] of the Grand Jury Clause of the Fifth Amendment that require[ ] reversal even without a showing of prejudice to the defendant.” Id. (internal quotation marks and citation omitted). Hassan’s intent was an essential element of the offense, and an impermissible constructive amendment of the indictment occurs if the impermissible alteration “affect[s] an essential element of the offense.” United States v. Patino, 962 F.2d 263, 266 (2d Cir.1992). The jury charge, which completely failed to explain the unique regulatory scheme, and allowed the jury to convict if Hassan- conspired to import or distribute “some controlled substance,” simply does not satisfy the burden assumed by the government in this case. Therefore, we vacate the judgment, and remand for a new trial. We understand that the khat-related regulatory scheme poses unique and complicated issues for the government, defendants, and district courts. We are not unsympathetic to those problems. In this case, however, given the terms of the indictment, the misleading evidence allowed" }, { "docid": "22796123", "title": "", "text": "admitted testimony and the overall strength of the government’s case, “the error did not influence the jury, or had but very slight effect.” Dukagjini, 326 F.3d at 62 (citation omitted). Bank Fraud Convictions: The Indictment Was Not Constructively Amended, But the Conviction on Count Twenty-Three Must Be Reversed on Sufficiency Grounds Defendants challenge their bank fraud convictions (Counts Twenty-Two and Twenty-Three) on two grounds: first, that the bank fraud charges were constructively amended, and second, that the evidence submitted at trial was insufficient to prove either the charged bank fraud or the constructively amended bank fraud. We conclude that the Superseding Indictment was not constructively amended, but that the government proffered insufficient evidence to prove that the misrepresentations alleged in Count Twenty-Three were material. We affirm Defendants’ convictions on Count Twenty-Two, but reverse their convictions on Count Twenty-Three on sufficiency grounds and instruct the district court to enter a judgment of acquittal on that Count. I. Constructive Amendment Defendants argue that the government’s proof at trial constituted a constructive amendment of the indictment. An indictment has been constructively amended “[wjhen the trial evidence or the jury charge operates to ‘broaden[] the possible bases for conviction from that which appeared in the indictment.’ ” United States v. Milstein, 401 F.3d 53, 65 (2d Cir.2005) (second alteration in original) (quoting United States v. Miller, 471 U.S. 130, 138, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985)); see also United States v. Kaplan, 490 F.3d 110, 128-29, No. 05-5531-cr, 2007 WL 1087270, at *16 (2d Cir. Apr.11, 2007). We exercise de novo review of a constructive amendment challenge, United States v. Wallace, 59 F.3d 333, 336 (2d Cir.1995), which is a per se violation of the Grand Jury Clause of the Fifth Amendment requiring reversal. United States v. Roshko, 969 F.2d 1, 5 (2d Cir.1992) (explaining that, where constructive amendment “affects an essential element of the offense,” it “destroyjs] the defendant’s substantial right to be tried only on charges presented in an indictment returned by a grand jury” (alteration in original) (internal quotation marks omitted)); see also Milstein, 401 F.3d at 65. Alternatively, “‘[a]" }, { "docid": "17804876", "title": "", "text": "subject to the Fourth Amendment, the Government insists that the search did not violate the Fourth Amendment. Finally, the appellants challenge the court’s jury instruction defining “vessel of the United States.” The appellants argue that the instruction was so vague as to require the jury to act arbitrarily in convicting them on this basis. The Government insists the instruction was not so vague as to constitute plain error. III. DISCUSSION A. Constructive Amendment The applicable statute makes it unlawful for any person “on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States, or who is a United States citizen or a resident alien of the United States on board any vessel” to possess with intent to distribute a controlled substance. 46 U.S.C.App. § 1903(a) (1988). The indictment in this case, however, only alleges that the GHOST was a vessel of the United States and says nothing about the defendants’ United States citizenship or resident alien status or the vessel being subject to the jurisdiction of the United States. As this court has explained, “an amendment occurs when the essential elements of the offense contained in the indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment.” United States v. Keller, 916 F.2d 628, 634 (11th Cir.1990), cert. denied, 499 U.S. 978, 111 S.Ct. 1628, 113 L.Ed.2d 724 (1991); see United States v. Miller, 471 U.S. 130, 138, 105 S.Ct. 1811, 1816, 85 L.Ed.2d 99 (1985). Convictions based on a modification of an essential element not charged by the grand jury present reversible error. United States v. Artrip, 942 F.2d 1568, 1570 (11th Cir.1991). Such modifications may occur either by the actions of the court or actions of the prosecutor. United States v. Salinas, 654 F.2d 319, 324 (5th Cir. Unit A Aug. 1981). A court’s jury instruction that constructively amends an indictment constitutes reversible error per se because the instruction violates a defendant’s Fifth Amendment right to be tried only on charges presented by a grand jury and creates the possibility that" }, { "docid": "22535929", "title": "", "text": "charged, such that the defendant is actually convicted of a crime other than that charged in the indictment.” United States v. Schnabel, 939 F.2d 197, 203 (4th Cir.1991). Thus, a constructive amendment violates the Fifth Amendment right to be indicted by a grand jury, is error per se, and must be corrected on appeal even when the defendant did not preserve the issue by objection. See United States v. Floresca, 38 F.3d 706, 712-13 (4th Cir.1994) (en banc). However, not all differences between an indictment and the proof offered at trial, rise to the “fatal” level of a constructive amendment.. See Redd, 161 F.3d at 795. When different evidence is presented at trial but the evidence does not alter the crime charged in the indictment, a mere variance occurs. See id. A mere variance does not violate a defendant’s constitutional rights unless it prejudices the defendant either by surprising him at trial and hindering the preparation of his defense, or by exposing him to the danger of a second prosecution for the same offense. See id. Count Six charged Gerome and Jeron with using and carrying “a firearm, Model 17, 9 millimeter Glock handgun with a laser sight, [on or about October 11, 1995], during and in relation to a drug trafficking crime, ... specifically, distribution of a narcotic controlled substance,” in violation of 18 U.S.C. § 924(c), and aiding and abetting such, in violation of 18 U.S.C. § 2. (J.A. 26) (emphasis added). However, the government’s evidence linked the October 11, 1995 § 924(c) charge under Count Six, not to the charged predicate offense of distribution, but to the predicate offense of possession with intent to distribute. Specifically, the government presented evidence that after Detective Robinson’s attempted purchase of drugs (during which no firearm was used or carried) failed to consummate, the surveillance team arrested Gerome inside the barbershop and Jeron outside the barbershop. When the officers searched Jer-on’s car, they found under the passenger’s seat a firearm and under the driver’s seat twenty-nine plastic bags, some containing marijuana and some containing crack, for a total of 49.9 grams" }, { "docid": "3018376", "title": "", "text": "1233, 1237 (7th Cir.1988). The general unanimity instruction required the jury to find that the appellants committed at least three predicate acts. Thus, the appellants’ unanimity argument is unavailing. Lanier, Kramer and Fischer argue that the district court’s instructions on the CCE count constructively amended the indictment. The court instructed the jury that it could find that the appellants engaged in a continuing series of violations based upon the various predicate acts set forth in the indictment, “together with any additional violations of the drug laws” (emphasis added). The appellants object to the italicized portion of the instruction on the ground that it subjected them to further controlled substance violations beyond those which were charged in the indictment. See Stirone v. United States, 361 U.S. 212, 215-18, 80 S.Ct. 270, 272-74, 4 L.Ed.2d 252 (1960). The Supreme Court has long held that every defendant has a “ ‘substantial right to be tried only on charges presented in an indictment returned by a grand jury.’ ” United States v. Miller, 471 U.S. 130, 140, 105 S.Ct. 1811, 1817, 85 L.Ed.2d 99 (1985) (quoting Stirone, 361 U.S. at 217, 80 S.Ct. at 273). A constructive amendment of an indictment occurs when the evidence introduced by the prosecution broadens “the possible bases for conviction from that which appeared in the indictment.” Miller, 471 U.S. at 138, 105 S.Ct. at 1816. A constructive amendment of the indictment may also occur if the district court’s instructions to the jury broaden “the possible bases for conviction.” Id.; United States v. Keller, 916 F.2d 628, 632-36 (11th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 1628, 113 L.Ed.2d 724 (1991). It is well settled that “[a] judicial amendment of the indictment, whether implicit or explicit, is per se reversible error.” United States v. Galiffa, 734 F.2d 306, 311 (7th Cir.1984); United States v. Kuna, 760 F.2d 813, 817 (7th Cir.1985). The appellants contend that the trial court’s instruction broadened the possible bases for their CCE convictions by including new predicate acts which were not listed in the indictment. They contend that it is possible that the jury" }, { "docid": "22535928", "title": "", "text": "“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ...,” U.S. Const, amend. V., “ ‘guarantees that a criminal defendant will be tried only on charges in a grand jury indictment.’ ” United States v. Reyes, 102 F.3d 1361, 1364 (5th Cir.1996) (quoting United States v. Arlen, 947 F.2d 139, 145 (5th Cir.1991)). Therefore, only the grand jury may broaden or alter the charges in the indictment. See Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). When the government, through its presentation of evidence and/or its argument, or the district court, through its instructions to the jury, or both, broadens the bases for conviction beyond those charged in the indictment, a constructive amendment — sometimes referred to as a fatal variance — occurs. See United States v. Redd, 161 F.3d 793, 795 (4th Cir.1998). A constructive amendment is a fatal variance because the indictment is altered “to change the elements of the offense charged, such that the defendant is actually convicted of a crime other than that charged in the indictment.” United States v. Schnabel, 939 F.2d 197, 203 (4th Cir.1991). Thus, a constructive amendment violates the Fifth Amendment right to be indicted by a grand jury, is error per se, and must be corrected on appeal even when the defendant did not preserve the issue by objection. See United States v. Floresca, 38 F.3d 706, 712-13 (4th Cir.1994) (en banc). However, not all differences between an indictment and the proof offered at trial, rise to the “fatal” level of a constructive amendment.. See Redd, 161 F.3d at 795. When different evidence is presented at trial but the evidence does not alter the crime charged in the indictment, a mere variance occurs. See id. A mere variance does not violate a defendant’s constitutional rights unless it prejudices the defendant either by surprising him at trial and hindering the preparation of his defense, or by exposing him to the danger of a second prosecution for the same offense. See" }, { "docid": "13114886", "title": "", "text": "verdict on Count Five. The jury found that Defendants engaged in a conspiracy to distribute GBL, a controlled substance analogue. The jury was appropriately instructed that, under 21 U.S.C. § 813, a controlled substance analogue is, to the extent intended for human consumption, considered to be a controlled substance. Thus, the jury was aware that, upon finding that Defendants distributed GBL, it had found a sufficient predicate for money laundering. The jury also found that Defendants distributed GHB, but that only means it found additional facts — namely, that GBL converted to GHB and that Defendants possessed a culpable state of mind with respect to distribution of GHB. What is not possible is that the jury found that the distribution of GHB was a separate act from the distribution of GBL. Consequently, because on the record evidence the jury could not have found Defendants distributed GHB and not GBL, there can be no dispute that the jury found a sufficient factual predicate to support a count of money laundering— namely, trafficking in GBL. 4. Other Issues a. Constructive Amendment Ansaldi and Gates ask us to vacate their convictions on Count Five of the indictment, on the ground that they were convicted in violation of the Fifth Amendment. Specifically, they argue that Judge Sey-bert improperly amended the indictment in her charge to the jury, thereby allowing the jury to convict Gates and Ansaldi of a crime not charged in the indictment. Count Five charges Defendants with a money laundering conspiracy. It alleges that they conspired to conduct financial transactions that affected interstate commerce, using the proceeds of unlawful activity. The last element is where the controversy lies. The indictment refers to “proceeds of specified unlawful activity, to wit: narcotics trafficking.” The District Judge, however, instructed the jury that they could return a guilty verdict if they found Defendants had used the proceeds from their trafficking in “controlled substances.” Ansaldi and Gates argue that the word “narcotics” has a specific meaning, given by 21 U.S.C. § 802(17), which does not include GBL. “Controlled substance,” on the other hand, refers to a larger" }, { "docid": "13114887", "title": "", "text": "Issues a. Constructive Amendment Ansaldi and Gates ask us to vacate their convictions on Count Five of the indictment, on the ground that they were convicted in violation of the Fifth Amendment. Specifically, they argue that Judge Sey-bert improperly amended the indictment in her charge to the jury, thereby allowing the jury to convict Gates and Ansaldi of a crime not charged in the indictment. Count Five charges Defendants with a money laundering conspiracy. It alleges that they conspired to conduct financial transactions that affected interstate commerce, using the proceeds of unlawful activity. The last element is where the controversy lies. The indictment refers to “proceeds of specified unlawful activity, to wit: narcotics trafficking.” The District Judge, however, instructed the jury that they could return a guilty verdict if they found Defendants had used the proceeds from their trafficking in “controlled substances.” Ansaldi and Gates argue that the word “narcotics” has a specific meaning, given by 21 U.S.C. § 802(17), which does not include GBL. “Controlled substance,” on the other hand, refers to a larger class of substances, including controlled substance analogues like GBL. Thus, Defendants argue, the District Court’s instruction constructively amended the indictment by improperly broadening the scope of the unlawful activity from sale of narcotics to sale of controlled substances. Constructive amendment of an indictment is a serious error. This Court has held that constructive amendment of an indictment during the course of a trial is a per se violation of the Grand Jury Clause of the Fifth Amendment. United States v. Patino, 962 F.2d 263, 265-66 (2d Cir.1992). A trial court constructively amends an indictment when it broadens the basis of conviction beyond that charged in the indictment. Id. at 265. The Fifth Amendment violation entailed by such amendment is not rendered harmless by the mere fact that the defendant was not “surprised” by the change; every defendant has a right to be tried only on the charges returned by a grand jury. United States v. Roshko, 969 F.2d 1, 6 (2d Cir.1992). On the other hand, not every variance between the words of the indictment" }, { "docid": "22535927", "title": "", "text": "challenge their October 11, 1995 § 924(c) convictions and sentences under Count Six of the indictment, and Jeron takes issue with the amount of crack attributed to him by the district court at sentencing. II Gerome and Jeron contend that their convictions and sentences under Count Six for using and carrying “a firearm, Model 17, 9 millimeter Glock handgun with a laser sight, [on or about October 11, 1995], during and in relation to a drug trafficking crime, ... specifically, distribution of a narcotic controlled substance,” in violation of 18 U.S.C. § 924(c), and aiding and abetting such, in violation of 18 U.S.C. § 2, (J.A. 26) (emphasis added), must be reversed, because the government, through its presentation of evidence and its closing argument, and the district court, through its jury instructions, constructively amended Count Six of the indictment by allowing proof of an alternative § 924(c) predicate offense not charged in the indictment— possession with intent to distribute drugs. We agree. The Fifth Amendment to the United States Constitution, which in relevant part provides: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ...,” U.S. Const, amend. V., “ ‘guarantees that a criminal defendant will be tried only on charges in a grand jury indictment.’ ” United States v. Reyes, 102 F.3d 1361, 1364 (5th Cir.1996) (quoting United States v. Arlen, 947 F.2d 139, 145 (5th Cir.1991)). Therefore, only the grand jury may broaden or alter the charges in the indictment. See Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). When the government, through its presentation of evidence and/or its argument, or the district court, through its instructions to the jury, or both, broadens the bases for conviction beyond those charged in the indictment, a constructive amendment — sometimes referred to as a fatal variance — occurs. See United States v. Redd, 161 F.3d 793, 795 (4th Cir.1998). A constructive amendment is a fatal variance because the indictment is altered “to change the elements of the offense" }, { "docid": "13114889", "title": "", "text": "and the evidence presented at trial or the instructions given to the jury amounts to a constructive amendment. An alteration of the charge is impermissible only if it affects an “essential element” of the offense. Patino, 962 F.2d at 266. Although the case law draws a fine line between those alterations that create constitutionally impermissible amendments and those that are merely permissible variations, this case does not lie near that boundary line. Rather, Count Five of the indictment in this case is perfectly clear and was not at all altered in scope by the District Court’s instruction. Defendants’ argument is that narcotics is a narrower class than controlled substances, and therefore, to substitute the one for the other is to change the scope of the designated substance. Their premise is incorrect. Defendants are, of course, correct that the statutory definition of “narcotic drugs,” 21 U.S.C § 802(17), delineates a subset of the larger class of controlled substances. Defendants overlook the most straightforward reading of the indictment, however, which does not employ the statutory definition of narcotics, but rather the broader, colloquial meaning of the word — trading in an illicit pharmaceutical. A review of the indictment as a whole makes it clear that this is the appropriate reading. The indictment first lays out all the allegations concerning Defendants’ conspiracy to acquire and distribute GBL. This description of Defendants’ business of selling GBL is then incorporated by reference into the beginning of Count Five. Count Five’s reference to “narcotics trafficking” then admits of only one plausible reading — that it is referring to Defendants’ trade in GBL. Defendants’ argument that the District Court broadened the meaning of narcotics as defined by 21 U.S.C. § 802(17) is a strawman. If the word “narcotics” in the indictment had the statutory meaning, there might be a question whether the indictment was impermis-sibly broadened by the jury charge. That is not the case. Rather, the indictment described in detail Defendants’ trafficking in GBL and then referenced those events with the shorthand designation of “narcotics trafficking.” Thus, the term “narcotics trafficking” in the indictment unambiguously —" }, { "docid": "1257318", "title": "", "text": "instructions, violates the Fifth Amendment since the Grand Jury Clause limits the available bases for conviction to those contained in the indictment. See Schmuck v. United States, 489 U.S. 705, 717-18, 109 S.Ct. 1443, 1451-52, 103 L.Ed.2d 734 (1989). A resulting conviction cannot stand because there is no assurance that it matches the offense charged. It is, in other words, reversible per se. See Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960). At the same time, it is important to note that not all variations in proof that contradict or supplement verbiage in the indictment rise to the level of constructive amendments. Like variances, some are generally benign in that they do not create a risk of conviction for an uncharged offense. These typically involve the correction of mere technical errors contained in the indictment, of a typographical or clerical nature for example, which would not alter the essential substance of the charged offense. See United States v. Leichtnam, 948 F.2d 370, 376 (7th Cir.1991). Obviously, whether a discrepancy is of constitutional dimension — that is, whether it constitutes an often-permissible narrowing or technical correction of the indictment as opposed to a never-permissible broadening of the indictment — turns on the role a departed-from allegation plays in the indictment. So long as a part of the indictment is unnecessary to and independent of the components of a charged, proven and found offense, proof diverging from it does not necessarily work a constructive broadening of the possible bases for conviction. . If, on the other hand, an allegation is either necessary to or is made essential to the offense as charged, failure to support it with appropriate proof at trial, even if evidence does establish what would have been an adequate replacement offense if charged, is fatal. What becomes essential to a charged offense in a particular case — that is, above and beyond what is necessary as a statutory matter — depends upon the structure of the indictment, see Leichtnam, 948 F.2d at 377-78, and is thus completely within the government’s control." }, { "docid": "6958629", "title": "", "text": "the Indictment It is well settled that a defendant enjoys a Fifth Amendment right to be tried on felony charges returned by a grand jury indictment and that only the grand jury may broaden the charges in the indictment once it has been returned. Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960). The district court may not broaden the charges by constructive amendment. Id. “A constructive amendment to the indictment occurs where the jury instructions so modify the elements of the offense charged that the defendant may have been convicted on a ground not alleged by the grand jury’s indictment.” United States v. Starke, 62 F.3d 1374, 1380 (11th Cir.1995) (quotation marks omitted). Sanders argues that the district court’s jury instructions impermissibly broadened the charges in the indictment by instructing that Sanders did “not have to know specifically the nature of the particular drug that he’s possessing, but must know that it is a controlled substance.” For the reasons explained below, we conclude that this instruction is fully consistent with the statutory requirements and our precedent. As background, we begin with the language of the relevant statutes. Section 841(a)(1) provides that “it shall be unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1) (emphasis added). As is evident from the statutory language, a person violates § 841(a) merely by knowingly possessing with intent to distribute a controlled substance. The § 841(a) offense is complete once the person commits the proscribed act and knows that the substance is a “controlled substance.” “[B]ecause the specific amount and type of drugs are not elements of the [§ 841(a)(1) ] offense, the government’s failure to prove the amount or type charged in the indictment does not merit reversal.” United States v. Baker, 432 F.3d 1189, 1233 (11th Cir.2005); see also United States v. Mejia, 97 F.3d 1391, 1392-93 (11th Cir.1996); United States v. Gomez, 905 F.2d 1513, 1514-15 (11th Cir. 1990). At the outset, we also" }, { "docid": "13114890", "title": "", "text": "narcotics, but rather the broader, colloquial meaning of the word — trading in an illicit pharmaceutical. A review of the indictment as a whole makes it clear that this is the appropriate reading. The indictment first lays out all the allegations concerning Defendants’ conspiracy to acquire and distribute GBL. This description of Defendants’ business of selling GBL is then incorporated by reference into the beginning of Count Five. Count Five’s reference to “narcotics trafficking” then admits of only one plausible reading — that it is referring to Defendants’ trade in GBL. Defendants’ argument that the District Court broadened the meaning of narcotics as defined by 21 U.S.C. § 802(17) is a strawman. If the word “narcotics” in the indictment had the statutory meaning, there might be a question whether the indictment was impermis-sibly broadened by the jury charge. That is not the case. Rather, the indictment described in detail Defendants’ trafficking in GBL and then referenced those events with the shorthand designation of “narcotics trafficking.” Thus, the term “narcotics trafficking” in the indictment unambiguously — if inelegantly — referred to the sale of GBL. There is no obligation to read statutory definitions into every word of an indictment, particularly when the indictment as a whole makes clear that a different meaning is intended. b. Good Faith Defense A criminal defendant is entitled to a jury instruction on any defense for which there is a foundation in the evidence. United States v. Allen, 127 F.3d 260, 265 (2d Cir.1997). That being said, this Court will not overturn a verdict when an instruction is refused,' unless the proposed instruction (a) is legally correct, (b) has a basis in the record, and (c) is not present elsewhere in the instructions. Id. Gates and Ansaldi argue that the trial court erred in not granting their request to instruct the jury on the availability of a “good faith” defense to Counts Three, Four and Five of .the indictment. They argue that there was evidence in the record that they believed they were breaking no law by selling GBL. They point to several pieces of evidence" }, { "docid": "1897733", "title": "", "text": "to distribute a controlled substance containing cocaine and methamphetamine, possession with intent to distribute a controlled substance containing cocaine, and using communication devices to facilitate commission of the conspiracy to distribute cocaine and methamphetamine. At the trial, however, the government’s proof included evidence involving Wozniak’s distribution and use of marijuana and the trial court instructed the jury that “it could find guilt on the basis of transactions involving any controlled substance regardless of which illegal substance was involved.” United States v. Wozniak, 126 F.3d at 106. Wozniak contended on appeal that he was the victim of a constructive amendment of the indictment in that he was required to stand trial, not only with respect to cocaine and methamphetamine transactions as charged by the grand jury, but also on uncharged conduct regarding marijuana. The Circuit agreed, resulting in the vacatur of the conviction and a remand for a new trial. In Leichtnam, the defendant’s home was searched at which time drugs, along with a rifle and two handguns were seized. In the resulting indictment, he was charged with various drug offenses as well as knowingly possessing the rifle during and in relation to drug trafficking in violation of 18 U.S.C. § 924(c). Nonetheless, evidence was placed before the jury concerning all three of the weapons that were seized during the course of the search. Consistent with the testimony, the court charged that the possession of either the rifle as alleged in the indictment or of either of the handguns discovered during the search would be sufficient for conviction, assuming the other elements of the § 924(c) count were established by the government beyond a reasonable doubt. This broadening of the indictment was found to be reversible error. As explained in Leichtnam, “[t]he grand jury clause of the Constitution requires that proof and jury instructions must be for crimes that were ‘clearly and fully set out in the indictment’ as returned by the grand jury.” Leichtnam, 948 F.2d at 379. Yet Wozniak and Leichtnam stood trial for both charged and uncharged crimes as victims of impermissible constructive amendments. As a result, their" } ]

[ { "docid": "16063378", "title": "", "text": "2219-20, 53 L.Ed.2d 168 (1977); United States v. Smith, 690 F.2d 748, 750 (9th Cir.1982), cert. denied, 460 U.S. 1041, 103 S.Ct. 1435, 75 L.Ed.2d 793 (1983), we vacate the § 846 sentences for counts one and six, which run consecutively to the § 848 CCE sentence. However, we affirm the consecutive sentences for the violations of both § 848 and its predicate offenses. The Circuits have split on the issue whether consecutive sentencing for CCE and its predicate substantive offenses violate the double jeopardy clause. Compare United States v. Leifried, 732 F.2d 388 (4th Cir.1984), and United States v. Gomberg, 715 F.2d 843, 851 (3d Cir.1983), cert. denied sub nom. Spielvogel v. United States, — U.S. -, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984), and United States v. Jefferson, 714 F.2d 689, 703 (7th Cir.1983), and United States v. Samuelson, 697 F.2d 255, 260 (8th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1314, 79 L.Ed.2d 711 (1984), and United States v. Middleton, 673 F.2d 31, 33 (1st Cir.1982), and United States v. Chagra, 669 F.2d 241, 261-62 (5th Cir.), cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982) (finding double jeopardy violation), with United States v. Brantley, 733 F.2d 1429, 1437 (11th Cir. 1984), cert. denied, — U.S.-, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985), and United States v. Mourad, 729 F.2d 195, 203 (2d Cir.) (finding no double jeopardy violation), cert. denied sub nom. Hargrave v. United States, — U.S. -, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984). The Supreme Court recently resolved the issue in Garrett v. United States, — U.S. -, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). The Court found that “[t]he language, structure, and legislative history of the Comprehensive Drug Abuse, Prevention and Control Act of 1970, however, show in the plainest way that Congress intended the CCE provision to be a separate criminal offense which was punishable in addition to, and not as a substitute for, the predicate offenses.” Id., at---, 105 S.Ct. at 2412. The Court noted that the “presumption when Congress creates two distinct offenses is that" } ]

[ { "docid": "7911845", "title": "", "text": "such legal legerdemain as “combined” convictions or conditional “alternative” sentences. In cases where district courts have failed to vacate lesser included conspiracy convictions at the time of sentencing, the majority’s practice has simply been to remand with instructions to vacate. See United States v. RiveraMartinez, 931 F.2d 148, 153 (1st Cir.), cert. denied, 502 U.S. 862, 112 S.Ct. 184, 116 L.Ed.2d 145 (1991); United States v. Johnson, 54 F.3d 1150 (4th Cir.1995); United States v. Schuster, 769 F.2d 337, 345 (6th Cir.1985), cert. denied, 475 U.S. 1021, 106 S.Ct. 1210, 89 L.Ed.2d 322 (1986); United States v. Maull, 806 F.2d 1340, 1346-47 (8th Cir.), cert. denied, 480 U.S. 907, 107 S.Ct. 1352, 94 L.Ed.2d 522 (1987); United States v. Jones, 918 F.2d 909, 911 (11th Cir.1990); United States v. Stallings, 810 F.2d 973, 975-76 (10th Cir.1987); United States v. Smith, 703 F.2d 627, 628 (D.C.Cir.1983) {per curiam) In so holding, none of these Cir cuits have expressed concern that the greater offense might one day be overturned pursuant to a § 2255 motion, thereby permitting the defendant to escape all punishment. Having considered the above authorities, the court is of the view that defendant’s conviction may be reimposed. As the Fourth Circuit has recognized, vacating a lesser included offense is “nothing more than a technicality” that is done purely for the defendant’s benefit so as to insure that he is not punished, either directly or collaterally, for both the lesser and greater offense. United States v. Reavis, 48 F.3d 763, 773 (4th Cir.1995). The vacation of the defendant’s conviction was not a rejection of the jury’s verdict, but rather was equivalent in practical effect to a “suspension of the imposition of sentence.” United States v. Hooper, 432 F.2d at 606 n. 4. Now that defendant’s CCE conviction has been reversed, there is no justification for defendant to escape punishment for his major role in a far-reaching conspiracy for which he was properly convicted. To hold otherwise, would indeed be to exalt form over substance. Accordingly, defendant’s conspiracy conviction will be reinstated and a hearing held for sentencing on that conviction." }, { "docid": "16909849", "title": "", "text": "of fact and its scope will develop case by case. We recognize that the statute’s language should be understood to include extremely large-scale dealers, e.g., United States v. Zavala, 839 F.2d 523, 527 (9th Cir.) (per curiam) (defendant involved in drug conspiracy over several years involving distribution of cocaine valued at $1.8 million), cert. denied, 488 U.S. 831, 109 S.Ct. 86, 102 L.Ed.2d 62 (1988); United States v. Dickey, 736 F.2d 571, 588 (10th Cir.1984) (defendant made $30,000 per month from CCE), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985), and those dealing drugs in the range of “thousands” of dollars, e.g., United States v. Smith, 918 F.2d 1501, 1513-14 (11th Cir.1990) (“tens of thousands” of dollars passed through the operation); United States v. Casamento, 887 F.2d 1141, 1159 (2d Cir.1989) (same), cert. denied, — U.S. -, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1989), — U.S. -, -, 110 S.Ct. 2175, 2564, 109 L.Ed.2d 504, 746 (1990); United States v. Gonzales, 866 F.2d 781, 784 (5th Cir.) (“many thousands of dollars changed hands”), cert. denied, 490 U.S. 1093, 109 S.Ct. 2438, 104 L.Ed.2d 994 (1989); United States v. Gantt, 617 F.2d 831, 847 (D.C.Cir.1980) (same); United States v. Bolts, 558 F.2d 316, 321 (5th Cir.1977) (same), cert. denied, 434 U.S. 930, 98 S.Ct. 417, 54 L.Ed.2d 290 (1977), 439 U.S. 898, 99 S.Ct. 262, 58 L.Ed.2d 246 (1978). But a district court ought not allow a jury to apply the statute to the occasional or small-time dealer, see Losada, 674 F.2d at 173 (substantial income language “clearly was intended to exclude trivial amounts derived from occasional drug sales”); Jeffers, 532 F.2d at 1117 (“congress did not seek to punish small-time operators under this section”), or to minor players in larger operations, see United States v. Ayala, 769 F.2d 98, 102-03 (2d Cir.1985) (evidence insufficient to convict “errand boy” in large drug operation when there was no direct evidence of large income or wealth and role in enter prise did not support inference of such income or wealth); but see Losada, 674 F.2d at 173 (dicta) (suggesting" }, { "docid": "6988978", "title": "", "text": "at least five other individuals; (4) with respect to whom the defendant holds a supervisory, managerial, or organizational role; and (5) from which the defendant receives substantial income or resources. United States v. Moya-Gomez, 860 F.2d 706, 745 (7th Cir.1988), cert. denied, 492 U.S. 908, 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989); see also 21 U.S.C. § 848(c); Garrett v. United States, 471 U.S. 773, 781, 105 S.Ct. 2407, 2412-13, 85 L.Ed.2d 764 (1985); Herrerar-Rivera, 25 F.3d at 498. Gibbs argues that the third and fourth elements were not met here in that the government failed to demonstrate that he acted in concert with five or more persons over whom he exercised a supervisory, managerial, or organizational role. The government maintains, however, that its evidence at trial was sufficient to prove that Gibbs supervised, managed, or organized at least the following ten individuals: Shawn Bahorich, David Sullivan, Terry Gibson, Frank Kirkwood, Thomas Roper, Mi chael Gibbs, Keith Gibbs, Steve Gibbs, Brian Gibbs, and Karrie Dinney. The jury is not required to agree on the identity of the five individuals who a defendant managed or supervised; instead, each juror need only conclude that the defendant managed or supervised at least five other persons. Herrera-Rivera, 25 F.3d at 497; United States v. Bond, 847 F.2d 1233, 1237-38 (7th Cir.1988); United States v. Markowski, 772 F.2d 358, 364 (7th Cir.1985), cert. denied, 475 U.S. 1018, 106 S.Ct. 1202, 89 L.Ed.2d 316 (1986). The government need not show, moreover, ‘“that the five acted in concert with each other, that the defendant exercised the same kind of control over each of the five, or even that the defendant had personal contact with each of [them].’ ” Moya-Gomez, 860 F.2d at 746 (quoting United States v. Possick, 849 F.2d 332, 335-36 (8th Cir.1988)); see also United States v. Bafia, 949 F.2d 1465, 1471 (7th Cir.1991), cert. denied, 504 U.S. 928, 112, S.Ct. 1989, 118 L.Ed.2d 586 (1992). It need only show that the defendant exerted some type of influence over five other individuals in the course of the criminal enterprise. Moya-Gomez, 860 F.2d at 746. We" }, { "docid": "7911844", "title": "", "text": "denied, 481 U.S. 1018, 107 S.Ct. 1899, 95 L.Ed.2d 505 (1987); United States v. Medina, 940 F.2d 1247, 1251 (9th Cir.1991). In so directing, the Second and Ninth Circuits, without providing any rationale, have expressed the view that a vacated conviction cannot be reimposed. Osorio Estrada, 751 F.2d at 134; Medina, 940 F.2d at 1253. Instead of vacating a lesser included offense, the Second Circuit’s practice is to “combine” the lesser conviction with the greater offense. Osorio Estrada, 751 F.2d at 135. The Third Circuit’s practice is to impose a “general” sentence on all counts for a term not exceeding the maximum possible sentence on that count which carries the greatest maximum sentence.” United States v. Corson, 449 F.2d 544, 551 (3d Cir.1971) {en banc). The Ninth Circuit, on the other hand, “sentences in the alternative based upon the lesser included count, or counts,” with the alternative sentence being “conditioned upon an appellate reversal of the CCE count.” Medina, 940 F.2d at 1253. The majority of the Circuits, including the Fourth, have not resorted to such legal legerdemain as “combined” convictions or conditional “alternative” sentences. In cases where district courts have failed to vacate lesser included conspiracy convictions at the time of sentencing, the majority’s practice has simply been to remand with instructions to vacate. See United States v. RiveraMartinez, 931 F.2d 148, 153 (1st Cir.), cert. denied, 502 U.S. 862, 112 S.Ct. 184, 116 L.Ed.2d 145 (1991); United States v. Johnson, 54 F.3d 1150 (4th Cir.1995); United States v. Schuster, 769 F.2d 337, 345 (6th Cir.1985), cert. denied, 475 U.S. 1021, 106 S.Ct. 1210, 89 L.Ed.2d 322 (1986); United States v. Maull, 806 F.2d 1340, 1346-47 (8th Cir.), cert. denied, 480 U.S. 907, 107 S.Ct. 1352, 94 L.Ed.2d 522 (1987); United States v. Jones, 918 F.2d 909, 911 (11th Cir.1990); United States v. Stallings, 810 F.2d 973, 975-76 (10th Cir.1987); United States v. Smith, 703 F.2d 627, 628 (D.C.Cir.1983) {per curiam) In so holding, none of these Cir cuits have expressed concern that the greater offense might one day be overturned pursuant to a § 2255 motion, thereby permitting" }, { "docid": "22109446", "title": "", "text": "cf. Garrett v. United States, 471 U.S. 773, 794, 105 S.Ct. 2407, 2419, 85 L.Ed.2d 764 (1985); Jeffers v. United States, 432 U.S. 137, 150, 97 S.Ct. 2207, 2216, 53 L.Ed.2d 168 (1977). A defendant cannot be punished for both crimes. See Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977) (the fifth amendment forbids cumulative punishment for a greater and lesser included offense); see also Jefferson, 714 F.2d at 703 (“To convict and impose punishment for both [the conspiracy and the CCE counts] would be tantamount to twice convicting and punishing one defendant for a single offense, in violation of the Double Jeopardy Clause.”). The government argues that Celestino did not suffer cumulative punishment for both crimes because the district court suspended his sentence on the lesser included conspiracy charge. While acknowledging that the usual way to deal with situations like this is to vacate the conspiracy conviction, the government asserts that the district court’s handling of the situation did not prejudice Celestino because he has not suffered any adverse consequences from the suspended sentence on count 1. The government therefore urges us to permit Celestino’s conviction on the conspiracy count to stand. Until recently, this circuit followed the majority of the circuits and vacated both the sentence and the conviction. We addressed this very question in Jefferson and said that the sentence and the conviction must be vacated. 714 F.2d at 703 n. 28. Most of the other circuits have used the same approach. See Possick, 849 F.2d at 341; United States v. Stallings, 810 F.2d 973, 975-76 (10th Cir.1987); United States v. Maull, 806 F.2d 1340, 1346-47 (8th Cir.1986), cert. denied, 480 U.S. 907, 107 S.Ct. 1352, 94 L.Ed.2d 522 (1987); United States v. Schuster, 769 F.2d 337, 343-45 (6th Cir.1985), cert. denied, 475 U.S. 1021, 106 S.Ct. 1210, 89 L.Ed.2d 322 (1986); United States v. Bascaro, 742 F.2d 1335, 1357-58 (11th Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3476, 87 L.Ed.2d 613 (1985); United States v. Oberski, 734 F.2d 1030, 1032 (5th Cir.1984), cert. denied, 469 U.S. 1113, 105" }, { "docid": "9774429", "title": "", "text": "U.S.C. § 1001, the government is required to prove not only that the defendant’s statements were false, but also that they were material. See Corsino, 812 F.2d at 30; United States v. Notarantonio, 758 F.2d 777, 785 (1st Cir.1985); cf. United States v. Scivola, 766 F.2d 37, 44 (1st Cir. 1985) (holding to like effect in prosecution for perjury). The district court decided the question of materiality rather than asking the jury to decide it. Appellant fulminates that the court erred in following this protocol, and suggests that determinations of materiality should be consigned to the jury’s exclusive province. He is incorrect. Materiality in a “false statement” case is a question of law to be determined by the court. See, e.g., United States v. Daily, 921 F.2d 994, 1004-06 (10th Cir.), cert. denied, — U.S. —, 112 S.Ct. 405, 116 L.Ed.2d 354 (1991); United States v. Bullock, 857 F.2d 367, 370-71 (7th Cir.1988); United States v. Hansen, 772 F.2d 940, 950 (D.C.Cir.1985), cert. denied, 475 U.S. 1045, 106 S.Ct. 1262, 89 L.Ed.2d 571 (1986); United States v. Bryant, 770 F.2d 1283, 1290 (5th Cir.1985), cert. denied, 475 U.S. 1030, 106 S.Ct. 1235, 89 L.Ed.2d 343 (1986); United States v. Greber, 760 F.2d 68, 73 (3d Cir.), cert. denied, 474 U.S. 988, 106 S.Ct. 396, 88 L.Ed.2d 348 (1985); United States v. Norris, 749 F.2d 1116, 1121 (4th Cir.1984), cert. denied, 471 U.S. 1065, 105 S.Ct. 2139, 85 L.Ed.2d 496 (1985); United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir.), cert. denied, 469 U.S. 822, 105 S.Ct. 97, 83 L.Ed.2d 43 (1984); United States v. Abadi, 706 F.2d 178, 180 (6th Cir.), cert. denied, 464 U.S. 821, 104 S.Ct. 86, 78 L.Ed.2d 95 (1983); United States v. Richmond, 700 F.2d 1183, 1188 (8th Cir. 1983). We have heretofore adopted this view, see Corsino, 812 F.2d at 31 n. 3; see also United States v. Nazzaro, 889 F.2d 1158, 1166 (1st Cir.1989) (stating in perjury prosecution “that the materiality of perjurious testimony is within the exclusive domain of the court, not the jury”), and continue to believe that it is correct." }, { "docid": "23322764", "title": "", "text": "1568, 1582 (11th Cir.1993), cert. denied sub nom. Lady v. United States, - U.S. -, 113 S.Ct. 3063, 125 L.Ed.2d 745 (1993) (citing Blumenthal, 332 U.S. at 558, 68 S.Ct. at 257). . Id., 980 F.2d at 1582-83; also see Blumenthal, 332 U.S. at 558, 68 S.Ct. at 257. . Castillo-Valencia, 917 F.2d at 498 (citing United States v. Berkowitz, 662 F.2d 1127, 1133 (5th Cir. Unit B 1981)). . See United States v. Strollar, 10 F.3d 1574, 1578 (11th Cir.), cert. denied, - U.S. -, 114 S.Ct. 2688, 129 L.Ed.2d 820 (1994) (quoting United States v. Esle, 743 F.2d 1465, 1476 (11th Cir.1984) (per curiam)). . Strollar, 10 F.3d at 1578. . Castillo-Valencia, 917 F.2d at 499. . 701 F.2d 136, 139 (11th Cir.), cert. denied sub nom., Wescott v. United States, 463 U.S. 1212, 103 S.Ct. 3548, 77 L.Ed.2d 1396 (1983). . 563 F.2d 552 (2d Cir.1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 779, 54 L.Ed.2d 789 (1978). . Veteto, 701 F.2d at 139. . Sacco, 563 F.2d at 556-57. . See Smith v. Kelso, 863 F.2d at 1571-72. . United States v. Darby, 744 F.2d 1508, 1521 (11th Cir. 1984), cert. denied sub nom. Yamanis v. United States, 471 U.S. 1100, 105 S.Ct. 2322, 85 L.Ed.2d 841 (1985). . United States v. Garmany, 762 F.2d 929, 936 (11th Cir.1985), cert. denied, 474 U.S. 1062, 106 S.Ct. 811, 88 L.Ed.2d 785 (1986). . United States v. Cohen, 888 F.2d 770 (11th Cir.1989) (citing United States v. Cruz, 805 F.2d 1464, 1480 (11th Cir.1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631, 95 L.Ed.2d 204 (1987), and United States v. Hilton, 772 F.2d 783, 787 (11th Cir.1985)). . Cruz, 805 F.2d at 1480 (citing United States v. Smith, 778 F.2d 925, 928 (2d Cir.1985)). . In the opening statement, Wright's counsel said: “you’re going to hear from people that have plea bargains, and the Court asked you about plea bargains and how you felt about them, that is people who have made deals with the government in exchange for their testimony; that is, they're being paid; they’re being" }, { "docid": "23587602", "title": "", "text": "229 (1983) (plurality opinion). . 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). . Id. at 685, 105 S.Ct. at 1575. . Id. at 686, 105 S.Ct. at 1575. . Id. at 687, 105 S.Ct. at 1576. (internal quotations and citations omitted). . Id., 392 U.S. at 7, 88 S.Ct. at 1872. . 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). . Id. at 224, 105 S.Ct. at 678. . Id. at 235, 105 S.Ct. at 683-84 (emphasis added). . 470 U.S. at 678, 105 S.Ct. at 1571. . Id. at 687, 105 S.Ct. at 1576; see United States v. Martinez, 808 F.2d 1050, 1053 (5th Cir.), cert. denied, 481 U.S. 1032, 107 S.Ct. 1962, 95 L.Ed.2d 533 (1987). . 501 F.2d 208 (5th Cir.1974), cert. denied, 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777 (1975). . Id. at 213 n. 10. . Id. (citation omitted). . 544 F.2d 1275 (5th Cir.), cert. dented, 434 U.S. 817, 98 S.Ct. 55, 54 L.Ed.2d 72 (1977). . Id. at 1280 n. 3. . 962 F.2d 451 (5th Cir.1992). . Id. at 460. . E.g. United States v. Alexander, 907 F.2d 269, 273 (2d Cir.1990), cert. denied, 498 U.S. 1095, 111 S.Ct. 983, 112 L.Ed.2d 1067 (1991); United States v. Salas, 879 F.2d 530, 535-36 (9th Cir.), cert. denied, 493 U.S. 979, 110 S.Ct. 507, 107 L.Ed.2d 509 (1989); United States v. Lego, 855 F.2d 542, 545 (8th Cir.1988); United States v. Serna-Barreto, 842 F.2d 965, 967-68 (7th Cir.1988); United States v. Trullo, 809 F.2d 108, 113 (1st Cir.), cert. denied, 482 U.S. 916, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987); United States v. Hardnett, 804 F.2d 353, 357 (6th Cir.1986), cert. denied, 479 U.S. 1097, 107 S.Ct. 1318, 94 L.Ed.2d 171 (1987); United States v. Pantoja-Soto, 768 F.2d 1235, 1236 (11th Cir.1985); United States v. Manbeck, 744 F.2d 360, 377 (4th Cir.1984), cert. denied, 469 U.S. 1217, 105 S.Ct. 1197, 84 L.Ed.2d 342 (1985); United States v. Merritt, 695 F.2d 1263, 1273-74 (10th Cir.1982), cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983); United" }, { "docid": "2375107", "title": "", "text": "747, 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 111, 114, 84 S.Ct. 1509, 1512, 1514, 12 L.Ed.2d 723 (1964); United States v. Kolodziej, 706 F.2d 590, 598-99 (5th Cir.1983); Williams v. Maggio, 679 F.2d 381, 391 (5th Cir.1982) (en banc), cert. denied, 463 U.S. 1214, 103 S.Ct. 3553, 77 L.Ed.2d 1399 (1983). . See supra nn. 6 & 9. . Franks, 438 U.S. at 155, 98 S.Ct. at 2676. . Id. at 156, 98 S.Ct. at 2676. . Franks, 438 U.S. at 165, 98 S.Ct. at 2681; see Ventresca, 380 U.S. at 111, 85 S.Ct. at 747; Aguilar, 378 U.S. at 111, 114, 84 S.Ct. at 1512, 1514; Kolodziej, 706 F.2d at 598-99; Williams, 679 F.2d at 391. . See United States v. De Los Santos, 810 F.2d 1326, 1336 (5th Cir.), cert. denied, 484 U.S. 978, 108 S.Ct. 490, 98 L.Ed.2d 488 (1987); United States v. Webster, 750 F.2d 307, 323 (5th Cir.1984), cert. denied, 471 U.S. 1106, 105 S.Ct. 2340, 85 L.Ed.2d 855 (1985). . 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). . Malley, 475 U.S. at 341, 344-45, 106 S.Ct. at 1096, 1098 (portions of text, footnotes, and citations omitted); see Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). . Anderson, 483 U.S. at 638, 107 S.Ct. at 3038 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)); Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817; Stevens v. Corbett, 832 F.2d 884, 890 (5th Cir.1987), cert. denied, - U.S. -, 108 S.Ct. 2018, 100 L.Ed.2d 604 (1988); United States v. Burzynski Cancer Research Institute, 819 F.2d 1301, 1310 (5th Cir.1987), cert. denied sub nom. Wolin v. United States, — U.S. —, 108 S.Ct. 1026, 98 L.Ed.2d 990 (1988). . Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. . Burzynski Cancer Research Institute, 819 F.2d at 1310; Saldana v. Garza, 684 F.2d" }, { "docid": "6064031", "title": "", "text": "one and two. As noted, they are drug conspiracy counts, and all parties agree that such counts are lesser-included offenses of count three, a continuing criminal enterprise count. Thus, the trial court’s decision to sentence on count three mandates that the convictions on counts one and two be automatically vacated. United States v. Dickey, 736 F.2d 571, 597 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985). But see United States v. Olivas, 558 F.2d 1366, 1368 (10th Cir.) (conviction allowed to stand even though sentence was vacated), cert. denied, 434 U.S. 866, 98 S.Ct. 203, 54 L.Ed.2d 142 (1977). Some circuits have held that convictions on drug conspiracy counts need not be vacated when the defendant is also convicted of a continuing criminal enterprise, although cumulative sentences may not be imposed under Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). United States v. Grayson, 795 F.2d 278, 287 (3d Cir.1986); United frates v. Aiello, 771 F.2d 621, 632-34 (2d Cir. 1985); United States v. Burt, 765 F.2d 1364, 1368 (9th Cir.1985). However, a majority of the circuits has required vacation of convictions and sentences of the lesser-included conspiracy offense. United States v. Schuster, 769 F.2d 337, 344-45 (6th Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 1210, 89 L.Ed.2d 322 (1986); United States v. Bascaro, 742 F.2d 1335, 1357-58 (11th Cir.1984), cert. denied, 472 U.S. 1017, 1021, 105 S.Ct. 3476, 3477, 3488, 87 L.Ed.2d 613, 622 (1985); United States v. Oberski, 734 F.2d 1030, 1032 (5th Cir. 1984); United States v. Jefferson, 714 F.2d 689, 703-06 (7th Cir.1983) (the note in United States v. Jefferson, 782 F.2d 697, 701 n. 3 (7th Cir.1986), that says that the earlier case was incorrectly decided only applies to the decision that predicate drug offenses are lesser-included offenses of continuing criminal enterprise); United States v. Smith, 703 F.2d 627, 628 (D.C.Cir.1983) (per curiam); United States v. Samuelson, 697 F.2d 255, 259-60 (8th Cir.1983), cert denied, 465 U.S. 1038, 104 S.Ct. 1314, 79 L.Ed.2d 711 (1984); United States v. Lurz, 666 F.2d 69, 76," }, { "docid": "17664612", "title": "", "text": "as issue of law rather than fact); United States v. Rodriguez, 888 F.2d 519, 522 n. 1 (7th Cir.1989) (listing cases disputing de novo review). .See, e.g., United States v. Yunis, 859 F.2d 953, 958 (D.C.Cir.1988); United States v. Burns, 15 F.3d 211, 216 (1st Cir.1994); Green v. Scully, 850 F.2d 894, 900 (2d Cir.), cert. denied, 488 U.S. 945, 109 S.Ct. 374, 102 L.Ed.2d 363 (1988); United States v. Velasquez, 885 F.2d 1076, 1086 (3d Cir.1989), cert. denied, 494 U.S. 1017, 110 S.Ct. 1321, 108 L.Ed.2d 497 (1990); United States v. Pelton, 835 F.2d 1067, 1072 (4th Cir.1987), cert. denied, 486 U.S. 1010, 108 S.Ct. 1741, 100 L.Ed.2d 204 (1988); United States v. Scurlock, 52 F.3d 531, 536 (5th Cir.1995); United States v. Rigsby, 943 F.2d 631, 635 (6th Cir.1991), cert. denied, 503 U.S. 908, 112 S.Ct. 1269, 117 L.Ed.2d 496 (1992); United States v. Robinson, 20 F.3d 320, 322 (8th Cir.1994); United States v. Benitez, 34 F.3d 1489, 1495 (9th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 1268, 131 L.Ed.2d 146 (1995); United States v. Muniz, 1 F.3d 1018, 1021 (10th Cir.), cert. denied, 114 S.Ct. 575, 126 L.Ed.2d 474 (1993); Stano v. Butterworth, 51 F.3d 942, 944 (11th Cir.1995); Coleman v. Singletary, 30 F.3d 1420, 1426 (11th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 1801, 131 L.Ed.2d 727 (1995). But see United States v. Mendoza-Cecelia, 963 F.2d 1467, 1475 (11th Cir.), cert. denied, - U.S. -, 113 S.Ct. 436, 121 L.Ed.2d 356 (1992) (reviewing under clear error standard). . See Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976); Davis v. North Carolina, 384 U.S. 737, 741-42, 86 S.Ct. 1761, 1764-65, 16 L.Ed.2d 895 (1966). See also Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985). . See United States v. D.F., No. 94-2900, Government Br. at 17 (relying on Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985) and United States v. Montgomery, 14 F.3d 1189, 1194 (7th Cir.1994), for its position that the voluntariness" }, { "docid": "20695753", "title": "", "text": "have been entitled to a lesser included-offense instruction.\") (emphases added); id. at 152-53 n. 20, 97 S.Ct. at 2217 n. 20 ('“[Bfefore this case it was by no means settled law that § 846 was a lesser included offense of § 848.... Even now, it has not been necessary to settle that issue definitively.\") (emphases added); id. at 145 n. 11, 97 S.Ct. at 2213 n. 11 (noting \"the conceptual closeness of the two statutes\"); id. at 144 n. 9, 97 S.Ct. at 2213 n. 9 (Although a pretrial government memorandum \"appear[ed] to concede that § 846 is a lesser included offense[,] ... [the Court found i]t ... unnecessary for present purposes to rely on any such concession.”). . This holding is consistent with the law in every other federal Circuit that has addressed the issue. See, e.g., United States v. Smith, 703 F.2d 627, 628 (D.C.Cir.1983) (per curiam); United States v. Benevento, 836 F.2d 60, 73 (2d Cir.1987); United States v. Raimondo, 721 F.2d 476, 477 (4th Cir.1983) (per curiam), cert. denied sub nom. Bello v. United States, 469 U.S. 837, 105 S.Ct. 133, 83 L.Ed.2d 74 (1984); United States v. Michel, 588 F.2d 986, 1001 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979); United States v. Schuster, 769 F.2d 337, 341 (6th Cir.1985), cert. denied, 475 U.S. 1021, 106 S.Ct. 1210, 89 L.Ed.2d 322 (1986); United States v. Jefferson, 714 F.2d 689, 705 (7th Cir.1983), vacated and remanded, 474 U.S. 806, 106 S.Ct. 41, 88 L.Ed.2d 34 (1985); United States v. Grubbs, 829 F.2d 18, 19 (8th Cir.1987) (per curiam); United States v. Burt, 765 F.2d 1364, 1368 (9th Cir.1985); United States v. Stallings, 810 F.2d 973, 974-75 (10th Cir.1987); United States v. Cruz, 805 F.2d 1464, 1479 (11th Cir.1986), cert. denied, — U.S.-, 107 S.Ct. 1631, 95 L.Ed.2d 204, and sub nom. Thomas v. United States, — U.S.-, 107 S.Ct. 3215, 96 L.Ed.2d 702 (1987); accord 8A J. Moore & M. Waxner, Moore’s Federal Practice ¶ 29.08[3], at 29-65 (Mar. 1988 rev.); see also United States v. Grayson, 795 F.2d 278," }, { "docid": "22109423", "title": "", "text": "(7th Cir.1983), cert. denied, 467 U.S. 1216, 104 S.Ct. 2661, 81 L.Ed.2d 367 (1984))). 1. The CCE statute, codified at 21 U.S.C. § 848, requires proof of five elements: (1) a violation of the federal narcotics laws; (2) which crime is a part of a series of violations of the federal narcotics laws; (3) undertaken by the defendant and at least five other individuals; (4) with respect to whom the defendant holds a supervisory, managerial, or organizational role; and (5) from which the defendant receives substantial income or resources. 21 U.S.C. § 848(d); Garrett v. United States, 471 U.S. 773, 781, 105 S.Ct. 2407, 2413, 85 L.Ed.2d 764 (1985); United States v. Markowski, 772 F.2d 358, 360-61 (7th Cir.1985), cert. denied, 475 U.S. 1018, 106 S.Ct. 1202, 89 L.Ed.2d 316 (1986). Celestino challenges the government’s proof on the question of whether he held a supervisory, managerial, or organizational position with respect to at least five other individuals. The CCE statute is a “carefully-crafted prohibition aimed at a special problem.” Garrett, 471 U.S. at 781, 105 S.Ct. at 2413. It is commonly referred to as the “kingpin” statute because its purpose is to punish, through severe penalties, “organizers and leaders of narcotics operations.” United States v. Sinito, 723 F.2d 1250, 1261 (6th Cir.1983), cert. denied, 469 U.S. 817, 105 S.Ct. 86, 83 L.Ed.2d 33 (1984). However, the term “kingpin” may be somewhat misleading. While the statute was not designed to reach mere “lieutenants and foot soldiers,” Garrett, 471 U.S. at 781, 105 S.Ct. at 2413, the case law clearly establishes that it does reach individuals who are not the ultimate authority in the drug ring but who nevertheless occupy an organizational, management, or supervisory role in the criminal enterprise. “The basic outlines of the disputed management element [of the CCE statute] have been liberally construed.” United States v. Possick, 849 F.2d 332, 335 (8th Cir.1988). “The statute is written in the disjunctive language, and the government need prove only that the defendant was an organizer, or a supervisor, or held some management role, not all three.” Id. Furthermore, the terms organizer," }, { "docid": "20695754", "title": "", "text": "Bello v. United States, 469 U.S. 837, 105 S.Ct. 133, 83 L.Ed.2d 74 (1984); United States v. Michel, 588 F.2d 986, 1001 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979); United States v. Schuster, 769 F.2d 337, 341 (6th Cir.1985), cert. denied, 475 U.S. 1021, 106 S.Ct. 1210, 89 L.Ed.2d 322 (1986); United States v. Jefferson, 714 F.2d 689, 705 (7th Cir.1983), vacated and remanded, 474 U.S. 806, 106 S.Ct. 41, 88 L.Ed.2d 34 (1985); United States v. Grubbs, 829 F.2d 18, 19 (8th Cir.1987) (per curiam); United States v. Burt, 765 F.2d 1364, 1368 (9th Cir.1985); United States v. Stallings, 810 F.2d 973, 974-75 (10th Cir.1987); United States v. Cruz, 805 F.2d 1464, 1479 (11th Cir.1986), cert. denied, — U.S.-, 107 S.Ct. 1631, 95 L.Ed.2d 204, and sub nom. Thomas v. United States, — U.S.-, 107 S.Ct. 3215, 96 L.Ed.2d 702 (1987); accord 8A J. Moore & M. Waxner, Moore’s Federal Practice ¶ 29.08[3], at 29-65 (Mar. 1988 rev.); see also United States v. Grayson, 795 F.2d 278, 284 (3d Cir.1986) (\"The [CCE] statute requires an agreement in a design or plan as well as concerted activity.’’) (citing Jef-fers, 432 U.S. at 148-49, 97 S.Ct. at 2214-15) (dictum), cert. denied, — U.S. -, 107 S.Ct. 1899, 95 L.Ed.2d 505, and sub nom. Robinson v. United States, — U.S. -, 107 S.Ct. 927, 93 L.Ed.2d 978 (1987). . Garrett was not, in other words, a prosecution where conspiracy was charged twice — once as a crime in itself and, under the same set of facts, once as part of the continuing series of violations necessary to make out the crime of CCE. See generally Fernandez, 822 F.2d 382. . We note that in two other instances, federal courts of appeals appear to have presumed the validity of the due diligence exception, however, the decisions that those courts reached did not rely upon application of the exception. See United States v. Boldin, 772 F.2d 719, 732 (11th Cir.1985); United States v. Stricklin, 591 F.2d 1112, 1124, n. 5 (5th Cir.1979). . The government, in a" }, { "docid": "12669390", "title": "", "text": "v. Middleton, 673 F.2d 31, 33 (1st Cir.1982) (same). . The circuits are uniform on this point. See eg., United States v. Aguilar, 849 F.2d 92, 98 (3d Cir.1988); United States v. Benevento, 836 F.2d 60, 73 (2d Cir.1987); United States v. Grubbs, 829 F.2d 18, 19 (8th Cir.1987) (per curiam); United States v. Stallings, 810 F.2d 973, 974-5 (10th Cir.1987); United States v. Cruz, 805 F.2d 1464, 1479 (11th Cir.1986); United States v. Schuster, 769 F.2d 337, 341 (6th Cir.1985), cert. denied, 475 U.S. 1021, 106 S.Ct. 1210, 89 L.Ed.2d 322 (1986); United States v. Burt, 765 F.2d 1364, 1368 (9th Cir.1985); United States v. Smith, 703 F.2d 627, 628 (D.C.Cir.1983) (per curiam); United States v. Michel, 588 F.2d 986, 1001 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979). Worth noting, however, is that United States v. Jeffers, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977) is sometimes cited as authority for the proposition that a § 846 conspiracy is a lesser-included offense of a § 848 CCE. See e.g., United States v. Osorio Estrada, 751 F.2d 128, 134 (2d Cir.1984), cert. denied, 474 U.S. 830, 106 S.Ct. 97, 88 L.Ed.2d 79 (1985); United States v. Raimondo, 721 F.2d 476 (4th Cir.) (per curiam), cert. denied, sub nom, Bello v. United States, 469 U.S. 837, 105 S.Ct. 133, 83 L.Ed.2d 74 (1984); United States v. Smith, 690 F.2d 748 (9th Cir. 1982), cert. denied, 460 U.S. 1041, 103 S.Ct. 1435, 75 L.Ed.2d 793 (1983). In fact, the Jeffers Court never decided the issue; it was assumed, arguendo. Jeffers, 432 U.S. at 149-50, 153 n. 20, 97 S.Ct. at 2215-16, 2217 n. 20 (citations omitted) (\"[B]efore this case it was by no means settled law that § 846 is a lesser included offense of § 848 ... Even now, it has not been necessary to settle that issue definitively.”). . Not all courts agree that the § 3013 special assessment is punitive. For those that do, see, United States v. Davis, 845 F.2d 94, 97 n. 2 (5th Cir. 1988); United States" }, { "docid": "10126849", "title": "", "text": "evidence, taking the view most favorable to the Government, to support it.” Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); see United States v. Wajda, 810 F.2d 754, 761 (8th Cir.), cert. denied, — U.S. -, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987). To prove a CCE violation, the government must establish four elements: (1) a felony violation of the federal narcotics laws, (2) as part of a continuing series of violations, (3) in concert with five or more persons for whom the defendant “occupies a position of organizer, a supervisory position, or any other position of management,” and (4) from which the defendant derives substantial income or resources. 21 U.S.C. § 848(d); Garrett v. United States, 471 U.S. 773, 781, 105 S.Ct. 2407, 2413, 85 L.Ed.2d 764 (1985); United States v. Tarvers, 833 F.2d 1068, 1074 (1st Cir.1987). Possick claims that there was insufficient evidence for the jury to find that he organized, supervised, or managed five or more persons in conducting his drug business. He does not dispute the existence of the other CCE elements. The basic outlines of the disputed management element have been liberally construed. See United States v. Maull, 806 F.2d 1340, 1343 (8th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1352, 94 L.Ed.2d 522 (1987); United States v. Lewis, 759 F.2d 1316, 1331 (8th Cir.), cert. denied, 474 U.S. 994, 106 S.Ct. 406, 88 L.Ed.2d 357 (1985). The statute is written in disjunctive language, and the government need prove only that the defendant was an organizer, or a supervisor, or held some management role, not all three. United States v. Dickey, 736 F.2d 571, 587 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985); United States v. Phillips, 664 F.2d 971, 1013 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). The terms “organizer,” “supervisory,” and “management” have been given their plain meaning. United States v. Oberski, 734 F.2d 1030, 1032 (5th Cir.1984); United States v. Mannino, 635 F.2d 110, 117 (2d Cir.1980). A defendant" }, { "docid": "21573437", "title": "", "text": "assess, as best it can, the probable motives or interests the witnesses could have in testifying truthfully or falsely. Martin, 815 F.2d at 821. Other courts of appeal have the same rule. See United States v. Townsend, 796 F.2d 158, 162-63 (6th Cir.1986); United States v. Binker, 795 F.2d 1218, 1222-23 (5th Cir.1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1287, 94 L.Ed.2d 144 (1987); United States v. Dennis, 786 F.2d 1029, 1046 (11th Cir.1986), reh’g granted in part and denied in part, 804 F.2d 1208, cert. denied, 481 U.S. 1037, 107 S.Ct. 1973, 95 L.Ed.2d 814 (1987); See also United States v. Craig, 573 F.2d 513, 519 (7th Cir.), cert. denied, 439 U.S. 820, 99 S.Ct. 83, 58 L.Ed.2d 111 (1978). V. CONTINUING CRIMINAL ENTERPRISE Newton was a'so convicted of being a supervisor or organizer of a continuing criminal narcotics enterprise in violation of 21 U.S.C. § 848. A conviction on this count requires that the government prove that the defendant (1) committed a drug offense punishable as a felony; (2) as part of a continuing criminal enterprise; (3) in which the defendant committed a series of drug offenses in concert with five or more persons with respect to whom the defendant acted as supervisor, organizer, or manager; and (4) obtained substantial income or resources from the drug violations. Garrett v. United States, 471 U.S. 773, 781, 105 S.Ct. 2407, 2412-13, 85 L.Ed.2d 764 (1985); See also, 21 U.S.C. § 848(b). Newton contends that under the third part of the Garrett standard, the jury must agree on the identities of the five individuals who are supervised. Newton’s argument finds no support in the language of the statute, nor in precedent. We have held that a jury is not required to determine the identity of the other individuals involved. United States v. Tarvers, 833 F.2d 1068, 1073-75 (1st Cir.1987). Tarvers, which we reaffirm, is consistent with cases decided by other courts of appeal that have had occasion to consider the same issue. United States v. Moya-Gomez, 860 F.2d 706, 747 (7th Cir.1988); United States v. Possick, 849 F.2d 332, 337" }, { "docid": "12669389", "title": "", "text": "to the sentences imposed at the second sentencing hearing. . A predicate offense of § 848 CCE is a violation of “any provision of this subchapter or subchapter II of this chapter the punishment for which is a felony.\" 21 U.S.C. § 848(c).' The Circuits are in agreement that a § 846 conspiracy qualifies as a predicate offense of a § 848 CCE. United States v. Ricks, 802 F.2d 731, 737 (4th Cir.), cert. denied, 479 U.S. 1009, 107 S.Ct. 650, 93 L.Ed.2d 705 (1986) (\"the government may rely on a § 846 violation to establish a § 848 offense”); see also United States v. Schuster, 769 F.2d 337, 345 (6th Cir.1985) (same), cert. denied, 475 U.S. 1021, 106 S.Ct. 1210, 89 L.Ed.2d 322 (1986); United States v. Jones, 763 F.2d 518, 524-25 (2d Cir.) (same), cert. denied, 474 U.S. 981, 106 S.Ct. 386, 88 L.Ed.2d 339 (1985); United States v. Brantley, 733 F.2d 1429, 1436 n. 14 (11th Cir.1984) (same), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985), United States v. Middleton, 673 F.2d 31, 33 (1st Cir.1982) (same). . The circuits are uniform on this point. See eg., United States v. Aguilar, 849 F.2d 92, 98 (3d Cir.1988); United States v. Benevento, 836 F.2d 60, 73 (2d Cir.1987); United States v. Grubbs, 829 F.2d 18, 19 (8th Cir.1987) (per curiam); United States v. Stallings, 810 F.2d 973, 974-5 (10th Cir.1987); United States v. Cruz, 805 F.2d 1464, 1479 (11th Cir.1986); United States v. Schuster, 769 F.2d 337, 341 (6th Cir.1985), cert. denied, 475 U.S. 1021, 106 S.Ct. 1210, 89 L.Ed.2d 322 (1986); United States v. Burt, 765 F.2d 1364, 1368 (9th Cir.1985); United States v. Smith, 703 F.2d 627, 628 (D.C.Cir.1983) (per curiam); United States v. Michel, 588 F.2d 986, 1001 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979). Worth noting, however, is that United States v. Jeffers, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977) is sometimes cited as authority for the proposition that a § 846 conspiracy is a lesser-included offense of a §" }, { "docid": "22109447", "title": "", "text": "any adverse consequences from the suspended sentence on count 1. The government therefore urges us to permit Celestino’s conviction on the conspiracy count to stand. Until recently, this circuit followed the majority of the circuits and vacated both the sentence and the conviction. We addressed this very question in Jefferson and said that the sentence and the conviction must be vacated. 714 F.2d at 703 n. 28. Most of the other circuits have used the same approach. See Possick, 849 F.2d at 341; United States v. Stallings, 810 F.2d 973, 975-76 (10th Cir.1987); United States v. Maull, 806 F.2d 1340, 1346-47 (8th Cir.1986), cert. denied, 480 U.S. 907, 107 S.Ct. 1352, 94 L.Ed.2d 522 (1987); United States v. Schuster, 769 F.2d 337, 343-45 (6th Cir.1985), cert. denied, 475 U.S. 1021, 106 S.Ct. 1210, 89 L.Ed.2d 322 (1986); United States v. Bascaro, 742 F.2d 1335, 1357-58 (11th Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3476, 87 L.Ed.2d 613 (1985); United States v. Oberski, 734 F.2d 1030, 1032 (5th Cir.1984), cert. denied, 469 U.S. 1113, 105 S.Ct. 797, 83 L.Ed.2d 790 (1985); United States v. Brantley, 733 F.2d 1429, 1436 n. 15 (11th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985); United States v. Smith, 703 F.2d 627, 628 (D.C.Cir.1983) (per curiam); cf. Ball v. United States, 470 U.S. 856, 864, 105 S.Ct. 1668, 1673, 84 L.Ed.2d 740 (1985) (where Congress did not intend to punish violations of two statutes separately, “[o]ne of the convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense” (emphasis supplied)). But see United States v. Benevento, 836 F.2d 60, 73 (2d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 2035, 100 L.Ed.2d 620 (1988); United States v. Grayson, 795 F.2d 278, 287 (3d Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 927, 93 L.Ed.2d 978 (1987) (vacating consecutive sentences but not convictions); United States v. Burt, 765 F.2d 1364, 1368 (9th Cir.1985) (same); United States v. Aiello, 771 F.2d 621, 632-34 (2d Cir.1985). In United States v. Bond, 847 F.2d 1233 (7th Cir.1988), another panel of" }, { "docid": "8971247", "title": "", "text": "558 (11th Cir.1990); United States v. Amend, 791 F.2d 1120, 1125 (4th Cir.) (indictment sufficient although not alleging five individuals with whom the defendant acted in concert), cert. denied, 479 U.S. 930, 107 S.Ct. 399, 93 L.Ed.2d 353 (1986); United States v. Sterling, 742 F.2d 521, 526 (9th Cir.1984), cert. denied, 471 U.S. 1099, 105 S.Ct. 2322, 85 L.Ed.2d 840 (1985); Sperling v. United States, 692 F.2d 223, 226 (2d Cir.1982), cert. denied, 462 U.S. 1181, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983); United States v. Johnson, 575 F.2d 1347, 1356 (5th Cir.1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1213, 1214, 59 L.Ed.2d 454 (1979). Three other circuits have held that an indictment was sufficient where the predicate offenses were alleged in other counts of the indictment. United States v. Staggs, 881 F.2d 1527, 1531 (10th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 719, 107 L.Ed.2d 739 (1990); United States v. Moya-Gomez, 860 F.2d 706, 752 (7th Cir.1988), cert. denied, 492 U.S. 908, 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989); United States v. Becton, 751 F.2d 250, 256-57 (8th Cir.1984), cert. denied, 472 U.S. 1018, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985). We agree with those circuits which have held that all that is required to satisfy defendant’s fifth amendment right to be tried only upon offenses presented to a grand jury is evidence that the defendant committed three predicate offenses for a section 848 violation, regardless of whether such offenses were charged in counts in the indictment. The Supreme Court has held that an indictment is sufficient “if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). See also Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-47, 8 L.Ed.2d 240 (1962); United States v. Gray, 790 F.2d 1290, 1296 (6th Cir.1986); United States v. Piccolo," } ]

[ { "docid": "21889004", "title": "", "text": "prior decision that Fragus had no right to a prior judicial determination of obscenity in the ease at bar. II. The Supreme Court has now also affirmed the decision of a three-judge district court in Gable v. Jenkins, 309 F.Supp. 998 (ND. Ga., 1969) [CA 13001, October 24, 1969], 397 U.S. 592, 90 S.Ct. 1351, 25 L.Ed.2d 595 (1970), holding that Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) does not invalidate a Georgia statute, Ga. Code 26-2101, which prohibits the distribution of materials defined as obscene. Only one issue was presented in appellant’s original brief in this court — the necessity of a prior judicial determination of obscenity — and only that issue was discussed in the reply brief filed by the United States Attorney. The constitutionality of Title 18, § 1462, United States Code, was not raised in these briefs. Oral argument was waived in this case. However, by a written response to a question posed by this court by letter, following our preliminary summary calendar review procedures, appellant advanced a one-sentence submission that Stanley v. Georgia, supra, “requires no great stretch” to legitimatize the shipment of hard core pornography in interstate commerce in order to have it available for consumption in the privacy of one’s home. This contention has now been directly rejected by Gable v. Jenkins, supra, as to the right of the State of Georgia to proscribe distribution of obscenity.. There is no logical distinction between the permissibility of State intrastate regulation of such traffic and federal interstate control under § 1462. We therefore reaffirm our holding that this statute was constitutionally valid as it was applied under the facts of the case sub judice. This court has noted the recent holding of a three-judge district court in United States v. 37 Photographs, 309 F.Supp. 36 [C.D. Calif. January 27, 1970], which held that Title 19, § 1305, United States Code, which prohibits the importation of obscene pictures, is unconstitutional as applied to an importer of obscenity who frankly states he intends to reprint and broadcast such trash. We expressly" } ]

[ { "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": "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": "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": "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": "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": "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": "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": "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": "12305828", "title": "", "text": "able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” 15 U.S.C.A. § 1601 (Supp.1971). . 12 C.F.R. § 226.8(b) (5) provides that where the property is not identifiable an explanation of the manner in which the creditor obtains or may acquire the security interest must be disclosed. . Excerpt from FRB Letter of March 14, 1969, C.C.H. Consumer Credit Guide If 30,001. . State statutes permitting entry of judgment pursuant to a warrant of attorney without notice or opportunity to appear and defend have been held unconstitutional in two recent federal decisions. Osmond v. Spence (D.Del., filed 5-13-71) 327 F.Supp. 1349; Swarb v. Lennox, 314 F.Supp. 1091 (E.D.Pa.1970). New York has refused to give full faith and credit to such judgments. Atlas Credit Corp. v. Ezrine, 25 N.Y.2d 219, 303 N.Y.S.2d 382, 250 N.E.2d 474 (1969). Illinois, however, has recently affirmed the constitutionality of their statute allowing entry of judgment by confession. First National Bank in De Kalb v. Keisman, 47 Ill.2d 364, 265 N.E.2d 662 (1970). . See generally Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599 (1962). . Compare Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943) with Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1952). . See Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). . See, e. g., Rosenthal v. New York, 226 U.S. 260, 33 S.Ct. 27, 57 L.Ed. 212 (1912) ; Missouri, Kansas & Tex. Ry. Co. of Texas v. Cade, 233 U.S. 642, 34 S.Ct. 678, 58 L.Ed. 1135 (1914). . See, e. g., Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919) ; Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932). . Compare Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (doctor-patient) with Davis & Farnum Mfg. Co. v. Los Angeles, 189 U.S. 207, 23 S.Ct. 498, 47 L.Ed. 778 (1903) ;" }, { "docid": "23505056", "title": "", "text": "a credible threat of enforcement and plausible allegations of intent or desire to engage in the threatened activities as sufficient predicates for justiciability. The potential chilling effect of vague and overbroad statutes has overcome many of the discretionary rules of judicial abstention which fortify the case or controversy requirement, including the federal abstention doctrine, Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); the exhaustion of remedies doctrine, Wolff v. Selective Service Local Board No. 16, supra; and the denial of standing to raise the rights of third parties, United States v. Raines, 362 U.S. 17, 21-22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960); NAACP v. Button, 371 U.S. 415, 432-433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); cf. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Although the Supreme Court has yet to trace the implications of these decisions for the case or controversy requirement, in Wolff the Second Circuit Court of Appeals invoked Dombrowski to support its finding of a justiciable controversy predicated on a First Amendment chill. In Dombrowski, the Supreme Court enjoined a state criminal prosecution because the threat of prosecution impaired the appellants’ freedom of expression. The Wolff appellants contested the validity of their reclassification by a local draft board. The court said that ordinarily such a claim would not be ripe for adjudication until a registrant had received and responded to an induction order, since reclassification itself is not a sufficient injury. However, it held this rule inapplicable where the reclassification resulted from the registrants’ protest activity, for there can be no doubt that the threat of receiving a I-A classification upon voicing dissent from our national policies has an immediate impact on the behavior of appellants and others similarly situated. 372 F.2d at 823. Since the appellants had in fact been reclassified, and since the court found that “no purpose would be served by relegating [them] * * * to their administrative remedies,” id. at 825, Wolff does not stand" }, { "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": "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": "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": "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": "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": "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": "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": "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": "20558739", "title": "", "text": "200-201, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966); Cox v. State of Louisiana, 379 U.S. 536, 551-552, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Edwards v. South Carolina, 372 U.S. 229, 237-238, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963). See, generally, Amsterdam, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. of P.L.Rev. 67 (1960). . See Dombrowski v. Pfister, 380 U.S. 479, 486-489, 85 S.Ct. 1116, 74 L.Ed.2d .22 (1967). See, also, N.A.A.C.P. v. Button, 371 U. S. 415, 432-433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Winters v. People of State of New York, 333 U.S. 507, 519-520, 68 S.Ct. 665, 92 L.Ed. 840 (1948); Thorn-hill v. State of Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 84 L.Ed. 1093 (1940) ; Herndon v. Lowry, 301 U.S. 242, 261-262, 57 S.Ct. 732, 81 L.Ed. 1066 (1937). . See 380 U.S. at 490-491, 85 S.Ct. 1116. This is an extension of the rule of Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940), which relaxes (lie normal rules of standing and permits defendants in criminal cases to attack vague or overly broad statutes on their face, without demonstrating that their own conduct could not constitutionally have been proscribed by a different and more precise enactment. Id. at 97-98, 60 S.Ct. 736. There is an exception to the Dombroio-Slci proscription. Where a readily apparent construction suggests itself as a vehicle for rehabilitating the statute in a single prosecution, the federal court need not exercise its jurisdiction. 380 U.S. at 491, 85 S.Ct. 1116. . 380 U.S. at 486-489, 490, 85 S.Ct. 1116. . Bailey, supra note 55 at 87. . Cameron v. Johnson, 381 U.S. 741, 755, 85 S.Ct. 1751, 14 L.Ed.2d 715 (1967) (dissenting opinion). . See 380 U.S. at 490, 85 S.Ct. 1116. . 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed. 2d 182 (1968). . 244 F.Supp. 846, 856 (S.D.Miss.1964). . Id. at 848, 851-855. . Id. at 848-849. . 381 U.S. 741, 85 S.Ct. 1751, 14 L.Ed. 2d 715 (1965). . Id. at 748-749, 85 S.Ct. 1751 (Justice Black, joined" } ]

[ { "docid": "23589042", "title": "", "text": "SWAN, Circuit Judge. On July 13, 1939, Porto Rican American Tobacco Company filed a petition for reorganization under chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq. Its-attorney was the appellant; he had been retained as its counsel for this proceeding on June 23, 1939. The district court immediately approved the petition, appointed trustees for the debtor and allowed them. to retain an attorney to serve as their counsel. Thereafter two committees representing bondholders and two committees-representing Class A stockholders were created and permitted to intervene in the-proceeding. Each of these committees had its own attorney. In March 1940 the trustees proposed a plan of reorganization, which contemplated the formation of a. new corporation to continue the business, and the issuance of preferred stock to the debtor’s bondholders and a junior stock to-the debtor’s Class A stockholders. A. month later the trustees obtained an offer of $4,000,000 for the assets of Congress. Cigar Company (the debtor’s subsidiary), and they thereupon proposed an amended plan based upon acceptance of this offer. The amended plan was confirmed over the opposition of the stockholders’ committees, with whose attorneys the appellant cooperated. -From the order of confirmation the stockholders’ committees took an appeal, as did also the debtor. This court, affirmed the order. In re Porto Rican Am.Tobacco Co., 2 Cir., 112 F.2d 655. Thereupon the attorney for the debtor, the trustees and their counsel, the bondholders’ and stockholders’ committees and their counsel and various other persons who claimed to be entitled to compensation, filed their several petitions therefor in the district court. The appellant applied for an allowance of $260.27 for disbursements and $14,500 for services. The disbursements were practically all incurred in the debtor’s appeal from the order of confirmation ; the services represented approximately 600 hours of work by the appellant and his office associates from May 1939 to June 1940. The district court stated that the services “for which he may be compensated from the estate, consisted principally of filing the petition under chapter X on behalf of the debtor”; it awarded him only $750 for services" } ]

[ { "docid": "23045865", "title": "", "text": "provides: “No attorney for a receiver, trustee or debtor in possession shall be appointed except upon the order of the court, which shall be granted only upon the verified petition of the receiver, trustee or debtor in possession, stating the name of the counsel whom he wishes to employ, the reasons for his selection, the professional services he is to fender, the necessity for employing co.unsel at all, and to the best of the petitioner’s knowledge all of the attorney’s connections with the bankrupt or debtor, the creditors or any other party in interest, and their respective attorneys. If satisfied that the attorney represents no interest adverse to the receiver, the trustee, or the estate in the matters upon which he is to be engaged, and that his employment would be to the best interests of the estate, the court, may authorize his employment, and such employment shall be for specific- purposes unless the court is satisfied that the case is one justifying a general retainer. If without disclosure any attorney acting for a receiver or trustee or debtor in possession shall have represented any interest adverse to the receiver, trustee, creditors or stockholders in any matter upon which he is employed for such receiver, trustee, or debtor in possession, the court may deny the allowance of any fee to such attorney, or the reimbursement of his expenses, or both, and may also deny any allowance to the receiver or trustee if it shall appear that he failed to make diligent inquiry into the connections of said attorney. * * * ” It has been repeatedly held that an attorney is not entitled to compensation unless there has been full compliance with General Order 44. Albers v. Dickinson, 8 Cir., 127 F.2d 957 and cases there cited. Further, it appears that on May 23, 1945, the then district judge refused an allowance of $450 to the receiver’s attorney for services rendered up to that time “-for the reason that the Receiver has not filed herein any Petition for the appointment of an attorney for said receiver.” The district court, in" }, { "docid": "2264209", "title": "", "text": "would suffer through this proposed payment of fees. But as far as appointing special counsel for them, we would leave that to your discretion, [emphasis added] Judge Ryan quickly rejected this invitation to appoint special counsel. On June 6, 1974, Judge Ryan denied the OCC application. Flushed with success, the Dunnington firm promptly petitioned for its own fee, which Judge Ryan granted on March 26, 1975. Our opinion in In re Sapphire Steamship Lines, supra, which sets forth the criteria to be applied in similar fee applications, had been filed in January, 1975. The district judge erroneously believed that Dunnington satisfied the Sapphire standards. Since we disagree, we reverse the district court. II. The courts have been extremely reluctant to apply the “common fund” rationale, see e. g. Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1881); Kopet v. Esquire Realty Co., 523 F.2d 1005 (2d Cir. 1975); see also Daw son, Attorney Fees From Funds, 87 Harv.L.Rev. 1597 (1974), in bankruptcy proceedings to compensate attorneys who claim their efforts have enhanced the debtor’s estate. Close scrutiny of such applications is appropriate in bankruptcy because the trustee, or the debtor in possession, is expressly charged with the care of the debtor’s assets. See 11 U.S.C. § 75; In re New York Investors, 130 F.2d 90, 91-92 (2d Cir. 1942). Accordingly, in In re Sapphire Steamship Lines, supra, we reaffirmed the three criteria, to which we have already alluded, that must be satisfied before a creditor’s lawyer may receive fees from the debtor’s estate: (1) refusal or neglect of the trustee, or debtor in possession, to act; (2) achievement by the applicant of a tangible benefit for all the creditors; and (3) advance authorization by the court for the attorney to act in place of the trustee or debtor in possession. Inability to surmount even a single hurdle is fatal. Dunnington’s opposition to the OCC request clearly did not benefit all the creditors. Those creditors who had contributed advances to cover OCC’s legal expenses obviously were, in fact, disadvantaged by denial of their petition, since they were thereby forced to" }, { "docid": "2264215", "title": "", "text": "e. g. N. Y. Investors, supra; In re Porto Rican American Tobacco Co., 117 F.2d 599 (2d Cir. 1941); In re Progress Lektro Shave Corp., 117 F.2d 602 (2d Cir. 1941). . There may be some instances in which it would be appropriate to relax the requirement that all the creditors must be benefited. For example, an attorney who successfully opposes a totally fraudulent claim should, perhaps, not be precluded from recovering a fee from the estate solely because the defeated claimant happened to be a creditor of the bankrupt. This is not such a case. . Dunnington concedes that it failed to secure court approval, but argues that the authorization requirement is waived where the trustee or debtor in possession “cannot reasonably have been expected to perform.” In re New York Investors, supra, at 92. This exception to the authorization rule has been limited to cases in which, as in New York Investors, compensation is sought for successfully opposing allowances to the trustee or debtor in possession himself, or their counsel. Sapphire Steamship, supra, at 1246 n. 6. To construe the exception broadly and apply the clear vision of hindsight would render the court-approval requirement nugatory. Even were we inclined to question the well-established New York Investors exception, which we are not, a case in which counsel’s actions redounded principally to the benefit of its own client would hardly be the proper occasion to do so. . Since Dunnington does not satisfy the second and third requirements, we need not tarry over the first, i. e., whether the debtor’s failure to oppose the OCC’s petition was an abdication of a duty under the Bankruptcy Act, amounting to a “refusal to act.” Sapphire Steamship, supra, at 1245. We do not, however, condone the conduct of either Limited or the OCC. In support of its $800,000 request, the OCC proffered an affidavit containing merely a general description of the services it had rendered and the total number of hours for which the law firms sought compensation. A claim of this magnitude could not properly have been granted upon such a vague" }, { "docid": "3120644", "title": "", "text": "awarded $18,000 for legal services in connection with the reorganization and in objections and exceptions to the claims of Midamerica Corporation and J. P. Morgan & Company against the subsidiary debtor. Abrams et al. v. Cleveland Terminals Building Co., 6 Cir., 136 F.2d 537. Section 243 of the Bankruptcy Act, 11 U.S.C.A. § 643, provides in substance that the judge may allow reasonable compensation for services rendered and reimbursement for proper costs and expenses incurred by creditors and the attorneys for them in connection with the administration of the estate. This section of the Act relates entirely to matters in connection with the reorganization of the debtor and proceedings on behalf of creditors and stockholders. It comprehends matters directly affecting the plan of reorganization and excludes those indirectly affecting it. Appellants, having been compensated for services rendered directly in connection with the reorganization, their claim here must me confined exclusively to beneficial services, if any, rendered to the subsidiary debtor in the prosecution of the claims against the Midamerica Corporation and its assignees, the Balls and the Ball Foundation. The claim in question was in existence at the time of the institution of the reorganization proceedings. It was a chose in action which passed to the subsidiary debtor in possession and it was the duty of the subsidiary debtor in possession to collect it. The claim was merely an incident to the reorganization proceeding. Whatever appellants did about the claim was in effect as attorneys for the subsidiary debtor and not as attorneys for creditors. It is the duty of the court in administering the bankruptcy law to avoid double expense to the estate and before there can be an allowance to an attorney acting for the subsidiary debtor, the burden rests on the applicant for fees to show (1) that his services benefited the estate, (2) that the trustee or debtor in possession refused to act and (3) that formal authorization was procured from the court to proceed in the name of the trustee or the debtor in possession. In re Porto Rican American Tobacco Co., 2 Cir., 117" }, { "docid": "22903808", "title": "", "text": "compensation could be recovered irrespective of benefit to the estate. A similar ruling appears in Re Rogers-Pyatt Shellac Co., 2 Cir., 51 F.2d 988 and in Re H. L. Stratton, Inc., 2 Cir., 51 F.2d 984, certiorari denied sub nom. Jonas & Neuburger v. General Motors Acc. Corp., 284 U.S. 682, 52 S.Ct. 199, 76 L.Ed. 576. See also Weil v. Neary, 278 U.S. 160, 49 S.Ct. 144, 73 L.Ed. 243; In re Robertson, 3 Cir., 4 F.2d 248. To recover compensation from the estate for services rendered to the trustee an attorney must receive appointment under General Order 44. It is true that the appellant acted throughout with the consent and approval of the referee, but this does not bring him within the proviso of section 157, 11 U.S. C.A. § 557. The waiver of disinterestedness there permitted must take the form of an appointment under General Order 44 and must be explicit; it can not take the form of silent acquiescence. See In re H. L. Stratton, Inc., 2 Cir., 51 F.2d 984, 987; In re Giannini, D.C.S.D.N.Y., 14 F.Supp. 1005, 1007. Nor can compensation be allowed on the ground that the services were rendered in the capacity of attorney for- the debtor and resulted in benefit to the estate. A trustee having been appointed it was his duty to administer the estate and recovery can not be had by others unless the trustee refuses to act and formal authorization is procured from the court to proceed in his stead. In re Porto Rican Am. Tobacco Co., supra. There may be services, however, for which the appellant is entitled to compensation in addition to that received for filing the petition. The stipulated facts disclose that he successfully contested a number of motions to dismiss the petition. The circumstances and the dates of such services do not appear but it is reasonable to-conclude that they are within the field of services for which the attorney for the debtor can claim compensation. Although it seems probable that the compensation for such services will not be large, the case should be" }, { "docid": "3120645", "title": "", "text": "and the Ball Foundation. The claim in question was in existence at the time of the institution of the reorganization proceedings. It was a chose in action which passed to the subsidiary debtor in possession and it was the duty of the subsidiary debtor in possession to collect it. The claim was merely an incident to the reorganization proceeding. Whatever appellants did about the claim was in effect as attorneys for the subsidiary debtor and not as attorneys for creditors. It is the duty of the court in administering the bankruptcy law to avoid double expense to the estate and before there can be an allowance to an attorney acting for the subsidiary debtor, the burden rests on the applicant for fees to show (1) that his services benefited the estate, (2) that the trustee or debtor in possession refused to act and (3) that formal authorization was procured from the court to proceed in the name of the trustee or the debtor in possession. In re Porto Rican American Tobacco Co., 2 Cir., 117 F.2d 599; In re Progress Lektro Shave Corporation, 2 Cir., 117 F.2d 602; In re New York Investors, Inc., 2 Cir., 130 F.2d 90. Under General Order 44, 11 U.S.C.A. following section 53, an attorney for a receiver, trustee or debtor in possession can be appointed only upon order of the court granted upon a petition stating specified facts and the employment of the attorney must be for a specific purpose, unless the court is satisfied the case is one justifying a retainer. General Orders have the force of law. Weil v. Neary, 278 U.S. 160, 169, 49 S.Ct. 144, 73 L.Ed. 243. This General Order cannot be by-passed by the creditors or their attorneys acting for the debtor without the consent of the court. Since appellants do not bring themselves within the General Order in question, it is immaterial whether or not their services were beneficial to the subsidiary debtor. They are entitled to nothing here. Section 242 of the Bankruptcy Act, 11 U.S.C.A. § 642, provides that the judge may allow reasonable compensation" }, { "docid": "19039698", "title": "", "text": "possession shall be appointed except upon the order of the court, which shall be granted only upon the verified petition of the receiver, trustee or debtor in possession, stating the name of the counsel whom he wishes to employ, the reasons for his selection, the professional services he is to render, the necessity for employing counsel at all, and to the best of the petitioner’s knowledge all of the attorney’s connections with the bankrupt or debtor, the creditors or any other party in interest, and their respective attorneys. If satisfied that the attorney represents no interest adverse to the receiver, the trustee, or the estate in the matters upon which he is to be engaged, and that his employment would be to the best interests of the estate, the court may authorize his employment, and such employment shall be for specific purposes unless the court is satisfied that the case is one justifying a general retainer. If without disclosure any attorney acting for a receiver or trustee or debtor in possession— shall have represented any interest adverse to the receiver, trustee, creditors or stockholders in any matter upon which he is employed for such receiver, trustee, or debtor in possession, the court may deny the allowance of any fee to such attorney, or the reimbursement of his expenses, or both, and may also deny any allowance to the receiver or trustee if it shall appear that he failed to make diligent inquiry into the connections of said attorney. Nothing herein contained shall prevent the judge, in proceedings under section 77 of the Act, from authorizing the employment of attorneys who are attorneys of the corporation, or associated with its legal department, in connection with the operation of the business of the corporation by a trustee or trustees under subsection (c) of section 77, when such employment is found by the judge to be in the public interest in relation to such operation and is not adverse to the interests of the trustee or trustees or of the creditors of the corporation.” . Bankruptcy Rule 11-22 makes Rule 215 applicable in" }, { "docid": "3053441", "title": "", "text": "be no doubt that the services of the RFC in keeping down expenses in this as well as in other cases that have come to our attention have been advantageous to creditors. The law as to the proper manner of reviewing allowances to equity receivers and to succeeding trustees, appointed under Section 77B, was rather unsettled during the period following the enactment of Section 77B and required far more study and labor than might be anticipated in view of the apparent narrowness of the issues involved. The work of the RFC in opposing allowances which it deemed excessive continued over a number of years, involved large sums of money, and was extensive. Important results were achieved by its efforts and on the merits substantial compensation was earned. But the District Court denied any compensation because of our recent decisions: In re Porto Rican American Tobacco Co., 2 Cir., 117 F.2d 599; In re Progress Lektro Shave Corporation, 2 Cir., 117 F.2d 602; see also In re Postal Telegraph & Cable Corporation, 2 Cir., 119 F.2d 861; In re Eureka Upholstering Co., 2 Cir., 48 F.2d 95. In these cases we in effect held that it was the duty of a trustee to perform all services requisite to the administration of the estate and that compensation could not be awarded from the estate to others than himself and his duly authorized attorneys’ and agents (1) unless they benefited the estate and (2) unless the trustee refused to act and formal authorization was procured from the court to proceed in his stead. In re Progress Lektro Shave Corporation, 2 Cir., 117 F. 2d at page 604. The cautious procedure of requiring a preliminary order as a condition of later entertaining an application for payment for services at the expense of estates was adopted in order to mitigate, if not completely avoid, the harassing importunities of numerous claimants for allowances out of the property of insolvent debtors, and to relieve the District Courts from the embarrassment of passing upon the merits of claims for compensation after all the services had been performed instead" }, { "docid": "3120646", "title": "", "text": "F.2d 599; In re Progress Lektro Shave Corporation, 2 Cir., 117 F.2d 602; In re New York Investors, Inc., 2 Cir., 130 F.2d 90. Under General Order 44, 11 U.S.C.A. following section 53, an attorney for a receiver, trustee or debtor in possession can be appointed only upon order of the court granted upon a petition stating specified facts and the employment of the attorney must be for a specific purpose, unless the court is satisfied the case is one justifying a retainer. General Orders have the force of law. Weil v. Neary, 278 U.S. 160, 169, 49 S.Ct. 144, 73 L.Ed. 243. This General Order cannot be by-passed by the creditors or their attorneys acting for the debtor without the consent of the court. Since appellants do not bring themselves within the General Order in question, it is immaterial whether or not their services were beneficial to the subsidiary debtor. They are entitled to nothing here. Section 242 of the Bankruptcy Act, 11 U.S.C.A. § 642, provides that the judge may allow reasonable compensation for services rendered and reimbursement for proper cost and expenses incurred in connection with the administration of an estate in a reorganization proceeding. The Act lodges a large discretion in the court of bankruptcy in fixing and allowing fees and compensation. In re Memphis St. R. Co., 6 Cir., 86 F.2d 891. The judgment of a court of bankruptcy regarding allowances of attorneys’ fees should not be disturbed on appeal unless there is a clear abuse of discretion amounting to a manifest disregard of right and reason. Sullivan & Cromwell v. Colorado Fuel & Iron Co., 10 Cir., 96 F.2d 219; Abrams et al. v. Cleveland Terminals Building Co., supra. The trial judge is familiar with proceedings in his court and also has expert knowledge as to the value of legal services. He should, therefore, have a broad discretion on the subject since he has a far better means of measuring what is just and reasonable than an appellate court. Trustees v. Greenough, 105 U.S. 527, 537, 26 L.Ed. 1157. The trial judge stated that" }, { "docid": "2264210", "title": "", "text": "estate. Close scrutiny of such applications is appropriate in bankruptcy because the trustee, or the debtor in possession, is expressly charged with the care of the debtor’s assets. See 11 U.S.C. § 75; In re New York Investors, 130 F.2d 90, 91-92 (2d Cir. 1942). Accordingly, in In re Sapphire Steamship Lines, supra, we reaffirmed the three criteria, to which we have already alluded, that must be satisfied before a creditor’s lawyer may receive fees from the debtor’s estate: (1) refusal or neglect of the trustee, or debtor in possession, to act; (2) achievement by the applicant of a tangible benefit for all the creditors; and (3) advance authorization by the court for the attorney to act in place of the trustee or debtor in possession. Inability to surmount even a single hurdle is fatal. Dunnington’s opposition to the OCC request clearly did not benefit all the creditors. Those creditors who had contributed advances to cover OCC’s legal expenses obviously were, in fact, disadvantaged by denial of their petition, since they were thereby forced to share' the $800,000 with the non-contributing creditors. Dunnington fares no better with regard to the requirement for court authorization. The firm did not seek formal authorization from Judge Ryan and, indeed, denied it was representing anyone other than Scarburgh. We must, therefore, conclude that Dunnington may not properly be granted the fees which it seeks. Accordingly, the order of the district court is reversed. . Speaking in 1964, Chief Justice Warren cautioned that “[c]osts must be reduced if the judiciary is to continue to administer the bankruptcy system.” New York Law Journal, May 27, 1964, p. 4 Col. 2. The exorbitant cost of bankruptcy litigation has received renewed attention in recent months, with default suggested as a remedy for New York City’s financial ills. See Anthony Lewis, Lawyers Will Not Suffer in Default, N.Y. Times, November 16, 1975, § 4, at 5. After reporting that one year’s legal fees in the Franklin National Bank litigation have exceeded $1 million, Mr. Lewis suggests that the “legal horror” entailed by bankruptcy proceedings may help explain the City’s" }, { "docid": "18711524", "title": "", "text": "claims that since an application for his employment as the debtor’s attorney in the Chapter 13 case was not necessary and since he considered the con verted Chapter 11 case to be a continuation of the Chapter 13 case, he was unaware that approval of his employment as attorney was necessary. ' Finally, O’Rourke claims that his fee agreement with the debtor antedated bankruptcy and included services for nonbankruptcy matters and that he should be entitled to retain his fee for the nonbankruptcy services he rendered. It is well settled in this Circuit that generally compensation will be denied to an attorney for a trustee or debtor in possession who acted without complying with Rule 215(a) or its predecessor, General Order -44 . Matter of Futronics Corp., 655 F.2d 463, 469 (2d Cir.1981) cert. denied 455 U.S. 941, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); see In re Progress Lektro Shave Corporation, 117 F.2d 602, 604 (2d Cir.1941); In re Eureka Upholstering Co., 48 F.2d 95 (2d Cir.1931); In re Rogers-Pyatt Shellac Co., 51 F.2d 988, 991 (2d Cir.1931); In re H.L. Stratton, Inc., 51 F.2d 984, 987 (2d Cir.1931) cert. denied sub nom. Jonas & Neuburger v. General Motors Acc. Corp., 284 U.S. 682, 52 S.Ct. 199, 76 L.Ed. 576 (1932). As the court in In re Rogers-Pyatt Shellac Co., supra 51 F.2d at 992, observed, construing General Order 44 which as noted is the substantive equivalent of Rule 215(a): [t]he only argument in favor of a nunc pro tunc order is that of hardship. But the hardship is of the appellants’ own making. The rule is clear, and they are charged with knowledge of it. To give heed to the argument of hardship in such circumstances would nullify the requirement that the affidavit be filed before the appointment is made. One reason for that requirement is obviously to allow the court to consider the grounds advanced for selecting counsel presumptively disqualified by representation of the petitioning creditors, unaffected by the emotional pressure which inevitably arises in their favor after the services have been rendered.... If the rule is" }, { "docid": "22269805", "title": "", "text": "in effect, operating under General Order 44 in Bankruptcy. It is well-settled that unless counsel have been approved by the court, though their services were of value to the court in a Chapter X proceeding, they must be denied compensation. This Court, speaking through Judge Maris, in In re National Tool & Mfg. Co., 209 F.2d 256, 257, stated as follows: “It is clear that General Order 44 applies to reorganization proceedings under Chapter X of the Bankruptcy Act. It is equally clear that Mr. Mode was not appointed as an attorney for the trustees of the debtor in the manner required by General Order 44. It is settled that under these circumstances an attorney may not be compensated out of the debtor’s estate even though he may have rendered valuable services to the trustees. It follows that the district court was without authority to make the order appealed from.” In In re Progress Lektro Shave Corp., 2 Cir., 117 F.2d 602, the court stated, in denying compensation to counsel: “There is no question but that the appellant acted throughout in good faith and a denial to him of compensation is a harsh conclusion. However, the law is unquestionably settled that the order of the district court was correct.” Gochenour v. Cleveland Terminals Building Co., 6 Cir., 142 F.2d 991, 993, cert. denied 323 U.S. 767, 65 S.Ct. 120, 89 L.Ed. 614; Albers v. Dickinson, 8 Cir., 127 F.2d 957; Beecher v. Leavenworth State Bank, 9 Cir., 184 F.2d 498; In re Pedisich, D.C., 103 F.Supp. 199; In re Robertson, 4 F.2d 248 (3rd Cir.). That the gaining of the necessary approval of the court was a requisite, there can be no doubt, since the final sentence of Section 328 of the Bankruptcy Act, 11 U.S.C., states: “Upon the filing of such amended petition, or of such creditors’ petition, and the payment of such additional fees as may be required to comply with section 132 of this Act, such amended petition or creditors’ petition shall thereafter, for all purposes of Chapter X of this Act, be deemed to have been" }, { "docid": "15783305", "title": "", "text": "creditors. Looking for analogous situations, arising under other provisions of the Bankruptcy Act, we find that it has been held that the attorneys for the petitioning creditors are not entitled to receive compensation from the estate for services or assistance rendered, either to the trustee or to the receiver after their appointment, unless specifically employed, by authority of the court, for that purpose. In re Roadarmour (C.C.A.6, 1910) 177 F. 379: Morse & Tyson v. Irving-Pitt Mfg. Co. (C.C.A.8, 1927) 18 F.(2d) 692; In re Floore (C.C.A.5, 1926) 16 F.(2d) 113; 6 Remington on Bankruptcy (3d Ed.) § 2692. And unpleasant though the task of rejecting claims of attorneys for services actually rendered in bankruptcy, when either not authorized or incurred in violation of the General Orders in Bankruptcy or of' rules of court, may have been,' at times, courts have performed it repeatedly and unhesitatingly. See Weil v. Neary (1929) 278 U.S. 160, 49 S.Ct. 144, 73 L.Ed. 243; In re G. W. Giannini, Inc. (D.C.N.Y.1936) 14 F.Supp. 1005. One can readily see the wisdom of these rulings. Were the law otherwise, there would be no limit to the burden which might be placed upon an estate if attorneys for the bankrupt or individual creditors could, by doing work which it is not their duty to do, by assisting the trustee, without an order of court allowing their special employment, burden the estate with the added cost of performing work which it is the duty of others to perform. The bankruptcy court would lose control in the matter of fees. “Volunteers” would be numberless. And it is almost certain that in every estate of any size, the courts would be confronted with claims for “voluntary” assistance. Hence the practical wisdom of these rulings, sanctioned by our own Circuit Court, that the attorney for the bankrupt be not compensated for work which the bankrupt is not under legal obligation to do, but vuhich it is the duty of the receiver, trustee or their attorneys to perform. The facts in the instant case show the unwisdom of a departure from these" }, { "docid": "22903807", "title": "", "text": "moderate charge for the time and labor expended. The basis for the denial of the allowance by the district court was that the bulk of the appellant’s services was of a character to be rendered by an attorney for the trustee and the appellant had not been appointed to serve in that capacity, as required by General Order 44, 11 U.S.C.A. following section 53; nor would he have been eligible for such appointment because not “disinterested” as required by §§ 157 and 158 of the Chandler Act. 11 U.S.C.A. §§ 557, 558. There is no question but that the appellant acted throughout in -good faith and a denial to him of compensation is a harsh conclusion. However, the law is unquestionably settled that the order of the district court was correct. In the case of In re Eureka Upholstering Co., 2 Cir., 48 F.2d 95 the attorney for the petitioning creditors rendered valuable services to the receiver in bankruptcy; it was held, however, that having failed to secure formal appointment under General Order 44 no compensation could be recovered irrespective of benefit to the estate. A similar ruling appears in Re Rogers-Pyatt Shellac Co., 2 Cir., 51 F.2d 988 and in Re H. L. Stratton, Inc., 2 Cir., 51 F.2d 984, certiorari denied sub nom. Jonas & Neuburger v. General Motors Acc. Corp., 284 U.S. 682, 52 S.Ct. 199, 76 L.Ed. 576. See also Weil v. Neary, 278 U.S. 160, 49 S.Ct. 144, 73 L.Ed. 243; In re Robertson, 3 Cir., 4 F.2d 248. To recover compensation from the estate for services rendered to the trustee an attorney must receive appointment under General Order 44. It is true that the appellant acted throughout with the consent and approval of the referee, but this does not bring him within the proviso of section 157, 11 U.S. C.A. § 557. The waiver of disinterestedness there permitted must take the form of an appointment under General Order 44 and must be explicit; it can not take the form of silent acquiescence. See In re H. L. Stratton, Inc., 2 Cir., 51 F.2d 984," }, { "docid": "22860923", "title": "", "text": "have been made by the petitioning creditors themselves. In re Medina Quarry Co., 191 F. 815 (C. C. A. 2). Passing this, it is apparent that the position of an attorney for petitioning creditors has been misconceived. Apparently the appellants suppose that by acting upon the retainer of the receiver as his attorneys, they acquired that status and may recover on that basis. This is not true. The forty-fourth General Order in Bankruptcy (11 USCA § 53) provides that no attorney shall be appointed for a receiver, except by order of court and upon petition of the receiver, supported by the proposed attorney’s affidavit. Local Rule 4 of the Eastern District of New York is to the same general effect, though a little more stringent in form. A similar rule was before the Supreme Court in Weil v. Neary, 278 U. S. 160, 49 S. Ct. 144, 73 L. Ed. 243, where it was held that its disregard not only prevented the attorney from recovering any compensation, but even invalidated an agreement to share the fees of the attorney actually appointed by the court. The order and the rule were passed to control serious abuses and are to be strictly observed; without an order of court upon full presentation of the relation of the proposed attorney with all other interests involved, not only may he not be retained, but he can recover nothing, no matter how beneficial, or how arduous, his services. He is confined to such an allowance as may reward him for acting for the petitioning creditors, which in the ab sence of a contest on the petition involves only simple duties. The appellants argue that they may at least recover under section 64b (2), 11 USCA § 104 (b) (2), since their services have been the means of recovering a substantial amount for the estate. In this too they are mistaken. While that section does indeed justify such an award after motion to compel the receiver or trustee to undertake a litigation (In re Stearns Salt & Lumber Co., 225 F. 1 [C. C. A. 6]), this" }, { "docid": "3053442", "title": "", "text": "861; In re Eureka Upholstering Co., 2 Cir., 48 F.2d 95. In these cases we in effect held that it was the duty of a trustee to perform all services requisite to the administration of the estate and that compensation could not be awarded from the estate to others than himself and his duly authorized attorneys’ and agents (1) unless they benefited the estate and (2) unless the trustee refused to act and formal authorization was procured from the court to proceed in his stead. In re Progress Lektro Shave Corporation, 2 Cir., 117 F. 2d at page 604. The cautious procedure of requiring a preliminary order as a condition of later entertaining an application for payment for services at the expense of estates was adopted in order to mitigate, if not completely avoid, the harassing importunities of numerous claimants for allowances out of the property of insolvent debtors, and to relieve the District Courts from the embarrassment of passing upon the merits of claims for compensation after all the services had been performed instead of determining initially whether the services were such as the trustees or their attorneys were bound to perform. The rule we have adopted clearly applies to compensation for all the services mentioned in subdivisions (a), (b) and (c), supra, except those in which the receivers, trustees, or their attorneys may have had personal interests so opposed to those of the creditors that only the latter would be likely to question what was allowed. It is said that the same reasoning should apply to Endelman’s allowances because the trustees refused to appeal from the order allowing them, though they were requested by the RFC to do so. But there was nothing to prevent an application by the RFC to the court for an order directing the trustees to appeal (and they were apparently appropriate persons to do so) or authorizing the RFC to do so in their stead. Under such circumstances, we think an application was necessary before the RFC was entitled to claim any compensation from the estate for appealing Endelman’s allowances. Compensation for opposing" }, { "docid": "22860922", "title": "", "text": "L. HAND, Circuit Judge. The petitioning creditors filed a petition for adjudication of the bankrupt on May 20, 1930, and got a receiver appointed on the same day, who was later appointed trustee, but who never applied to the court for the appointment of an attorney. It may, however, be assumed arguendo that, while acting as receiver he consulted with the attorneys for the petitioning creditors, availed himself of their services, and, as far as he was free to act, actually retained them as his attorneys. They examined the bankrupt and witnesses before the referee, attended meetings of creditors at one of which a composition was discussed, procured an order for the sale of the estate, discovered and secured certain concealed property, attended the sale of the assets, conferred with the receiver, and with creditors and debtors of the bankrupt, and prepared the receiver’s accounts and his fina) report. The referee and judge thought these services only “routine” and allowed one hundred dollars. The attorneys appealed. The petition was irregular in form, since it should have been made by the petitioning creditors themselves. In re Medina Quarry Co., 191 F. 815 (C. C. A. 2). Passing this, it is apparent that the position of an attorney for petitioning creditors has been misconceived. Apparently the appellants suppose that by acting upon the retainer of the receiver as his attorneys, they acquired that status and may recover on that basis. This is not true. The forty-fourth General Order in Bankruptcy (11 USCA § 53) provides that no attorney shall be appointed for a receiver, except by order of court and upon petition of the receiver, supported by the proposed attorney’s affidavit. Local Rule 4 of the Eastern District of New York is to the same general effect, though a little more stringent in form. A similar rule was before the Supreme Court in Weil v. Neary, 278 U. S. 160, 49 S. Ct. 144, 73 L. Ed. 243, where it was held that its disregard not only prevented the attorney from recovering any compensation, but even invalidated an agreement to share the" }, { "docid": "7913780", "title": "", "text": "trustees. Section 242, 11 U.S.C.A. § 642, permits the judge to allow “reasonable compensation for services rendered and reimbursement for proper costs and expenses incurred in connection with the administration of an estate” by enumerated parties in interest, including , committees or representatives of creditors, and “by the attorneys or agents for any of the foregoing.” See also section 243, 11 U.S.C.A. § 643. Whether an application for an allowance be considered under section 242 or 243, administrative services must benefit the estate, if compensation is to be allowed. In re Porto Rican American Tobacco Co., 2 Cir., 117 F.2d 599, 601. The present record is very vague as to what savings, if any, resulted from the appellant’s recommendations. Although his report was “available” to the trustees there is no clear evidence that they used it, arid it appears that sub stantial savings were effected before his report was made. But passing this weakness in the appellant’s case, he encounters the rule which this court has frequently enforced that no compensation can be allowed for “administrative” services unless the person performing them obtained authority from the court in limine. In re Porto Rican American Tobacco Co., supra; In re Progress Lektro Shave Corp., 2 Cir., 117 F.2d 602, 604 and cases there cited. There is no harshness in applying the rule in the case at bar for the record discloses that the court had stated at the very first hearing that no committee would be allowed to obtain reimbursement of expenses for “accountants, engineers or otherwise” unless express authorization were obtained from the court in advance. The services of the appellant in examining leases with a view to obtaining reduction in rentals were such as the debtor in possession or the trustee of the debtor was charged with the duty of performing in administering the estate. Under the established rule the appellant, who acted without authorization from the court, can recover no compensation from the estate for such services. Had his services related to the formulation of a plan of reorganization, the result might be different, for section 167(6), 11" }, { "docid": "18711523", "title": "", "text": "person, seeking compensation for services, or reimbursement of necessary expenses from the estate, to file an application with the court. Reading these sections and rules together in the context of this proceeding, it is apparent that in order to be eligible for counsel fees from an estate an application seeking court approval for the appointment of an attorney must be filed and an order obtained in advance of such employment. It is O’Rourke’s contention that the Affidavit of Proposed Attorney he filed on October 19, 1983 in support of his application for employment as attorney nunc pro tunc, satisfied the rule requiring a statement that he was a disinterested person and that had his application been timely filed, he would have been authorized to serve as the debtor’s attorney. O’Rourke claims that his failure to timely file an application for court approval of employment was due to excusable neglect, and he urges this court, as a court of equity, to ratify his employment and permit him to retain a fee for services rendered. O’Rourke also claims that since an application for his employment as the debtor’s attorney in the Chapter 13 case was not necessary and since he considered the con verted Chapter 11 case to be a continuation of the Chapter 13 case, he was unaware that approval of his employment as attorney was necessary. ' Finally, O’Rourke claims that his fee agreement with the debtor antedated bankruptcy and included services for nonbankruptcy matters and that he should be entitled to retain his fee for the nonbankruptcy services he rendered. It is well settled in this Circuit that generally compensation will be denied to an attorney for a trustee or debtor in possession who acted without complying with Rule 215(a) or its predecessor, General Order -44 . Matter of Futronics Corp., 655 F.2d 463, 469 (2d Cir.1981) cert. denied 455 U.S. 941, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); see In re Progress Lektro Shave Corporation, 117 F.2d 602, 604 (2d Cir.1941); In re Eureka Upholstering Co., 48 F.2d 95 (2d Cir.1931); In re Rogers-Pyatt Shellac Co., 51 F.2d" }, { "docid": "22269808", "title": "", "text": "judgment of the lower court will be affirmed. Judge VAN DUSEN concurs in the foregoing opinion. . General Order 44 in Bankruptcy reads as follows: APPOINTMENT OP ATTORNEYS No attorney for a receiver, trustee or debtor in possession shall be appointed except upon the order of the court, which shall be granted only upon the verified petition of the receiver, trustee or debtor in possession, stating the name of the counsel whom he wishes to employ, the reasons for his selection, the professional services he is to render, the necessity for employing counsel at all, and to the best of the petitioner’s knowledge all of the attorney’s connections with the bankrupt or debtor, the creditors or any other party in interest, and their respective attorneys. If satisfied that the attorney represents no interest adverse to the receiver, the trustee, or the estate in the matters upon which he is to be engaged, and that his employment would be to the best interests of the estate, the court may authorize his employment, and such employment shall be for specific purposes unless the court is satisfied that the case is one justifying a general retainer. If without disclosure any attorney acting for a receiver or trustee or debtor in possession shall have represented any interest adverse to the receiver, trustee, creditors or stockholders in any matter upon which he is employed for such receiver, trustee, or debtor in possession, the court may deny the allowance of any fee to such attorney, or the reimbursement of his expenses, or both, and may also deny any allowance to the receiver or trustee if it shall ajipear that he failed to make diligent inquiry into the connections of said attorney. Nothing herein contained shall prevent the judge, in proceedings under section 77 of the Act, from authorizing the employment of attorneys who are attorneys of the corporation, or associated with its legal department, in connection with the operation of the business of the corporation by a trustee or trustees under subsection (c) of section 77, when such employment is found by the judge to be" } ]

[ { "docid": "11035342", "title": "", "text": "contention that testimony regarding the statements of others cannot be used to support the enhancement is not correct. We find no error in the district court’s decision to credit the testimony of Agent Wong and accept the factual conclusions of the PSI. We, therefore, affirm the enhancement of West’s sentence for obstruction of justice. Finally, West contends that a prior misdemeanor conviction for possession of gambling paraphernalia in Texas should not have been considered in determining his criminal history category. Under U.S.S.G. § 4A1.2(c), a prior misdemeanor conviction is considered in determining a defendant’s criminal history category unless it is an exempted offense or similar to one of the exempted offenses listed in the Sentencing Guidelines. These excluded offenses, and any similar offenses, are only considered in determining a defendant’s criminal history category if the sentence was at least one year in prison or thirty days probation or if the prior offense is similar to the offense for which the defendant is currently being sentenced. § 4A1.2(c)(1) lists “gambling” as one of the excluded offenses. West argues that possession of gambling paraphernalia is similar to the offense of gambling and, therefore, his prior offense should be considered an excluded offense. If possession of gambling paraphernalia is found to be similar to the offense of gambling, this prior misdemeanor conviction would not be considered because West’s sentence was only three days imprisonment and the prior offense is not similar to the current offenses of tax evasion. Thus, the issue is whether the offense of possession of gambling paraphernalia is similar to the offense of gambling under U.S.S.G. § 4A1.2. In United States v. Hardeman, this Court set up a “common sense” approach to determine whether a prior offense is similar to an exempted offense. We determined that “all possible factors of similarity” should be considered, including: a comparison of punishments imposed for the listed and unlisted offenses, the perceived seriousness of the offense as indicated by the level of punishment, the elements of the offense, the level of culpability involved, and the degree to which the commission of the offense indicates" } ]

[ { "docid": "11486938", "title": "", "text": "‘conviction’ for purposes of 18 U.S.C. §§ 922(g) & (h) is a matter of federal law”)); accord United States v. Rayner, 2 F.3d 286, 287 (8th Cir.1993) (relying on Unger, rejecting defendant’s contention \"that the court should look to state law to determine whether a prior sentence counts for criminal history purposes”). . The two appellate courts that have set forth generic tests for measuring similarity are the Fifth and the Ninth Circuits. The Ninth Circuit test for determining whether an offense is similar to those § 4A 1.2(c) offenses excluded from a defendant’s criminal history was presented in United States v. Martinez, 905 F.2d 251 (9th Cir.1990). The Fifth Circuit’s approach, discussed in more detail in the text, was set forth by that court in United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.1991); see also United States v. West, 58 F.3d 133, 139 (5th Cir.1995) (engaging in Hardeman factor analysis). . We note that the sentence of one month’s court supervision is a considerably lesser penalty than § 4A1.2(c)'s “triggering period” of at least one year of probation or thirty days of imprisonment. . Cf. United States v. Dillon, 905 F.2d 1034, 1039 (7th Cir.1990) (recognizing that resisting arrest is excludable, but that a conviction for battery and resisting arrest required a criminal history point because none of the exempted offenses was similar to the \"battery aspect\" of the conviction); United States v. Russell, 913 F.2d 1288, 1294 (8th Cir.1990) (finding no error in district court’s consideration of state conviction for assault and criminal damage to property when computing criminal history), cert. denied, 500 U.S. 906, 111 S.Ct. 1687, 114 L.Ed.2d 81 (1991). . A disposition of court supervision is a sentencing alternative employed in the discretion of the trial court. People v. Hall, 251 Ill.App.3d 935, 191 Ill.Dec. 161, 163, 623 N.E.2d 751, 753 (1993). When a plea of guilty is entered, the court may order supervision sifter it considers the circumstances of the offense and the “history, character and condition of the offender,” and after it determines that: \"(1) the offender is not likely to" }, { "docid": "16731517", "title": "", "text": "States v. Elmore, 108 F.3d 23, 27 (3d Cir.1997), has traditionally guided courts in this judicial circuit in their analysis of similarity under § 4A1.2(c)(2). In Elmore, we were asked to determine whether a defendant’s prior convictions for possession of drug paraphernalia, assault, and harassment, should have been counted in his criminal history score, or whether they were “similar to” disorderly conduct, which the Guidelines explain should not be counted. Id. at 25. Stating that the “apparent concern of the Guidelines” was that courts might count an offense identical to those in the enumerated list, merely because the offense happened to go by a different name under state law, we held that courts should evaluate similarity by looking to the elements of the offense itself, rather than simply the name by which it is known. Id. at 27. We recognized in Elmore that not all of our sister Courts of Appeals shared our approach. We noted that when the Court of Appeals for the Fifth Circuit in United States v. Hardeman, 933 F.2d 278 (5th Cir.1991), was asked whether driving without insurance was “similar to” driving without a license, it used a multi-factor approach that looked to “all possible factors of similarity,” including the respective punishments, levels of culpability involved, and the degree to which commission of the offenses indicated a likelihood of recurring criminal conduct. Elmore, 108 F.3d at 27. In a similar inquiry, the Court of Appeals for the Seventh Circuit considered the Hardeman factors, but emphasized the “circumstances surrounding” and the “factual basis for” the defendant’s prior conduct, as well as the amount of punishment he actually received. United States v. Booker, 71 F.3d 685, 690 (7th Cir.1995). The Court of Appeals for the Ninth Circuit, in contrast, asked whether the conduct underlying a prior conviction was “universally regarded as culpable,” and whether it was a predictor of recurring criminal conduct. United States v. Martinez, 905 F.2d 251, 254 (9th Cir.1990). In 2007, the Sentencing Commission took note of the divergent approaches in the Courts of Appeals and published an amendment designed to unify them. The Guidelines" }, { "docid": "6833013", "title": "", "text": "claim). The Court in Apprendi, while acknowledging that Almendarez-Torres may be logically inconsistent with that case, and therefore incorrectly decided, chose not to overrule that decision. Apprendi 530 U.S. at 489-90, 120 S.Ct. 2348; see also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000), cert. denied, 531 U.S. 1202, 121 S.Ct. 1214, 149 L.Ed.2d 126 (2001). Ac cordingly this court remains bound by Almendarez-Torres, see Rodriguez de Quijas v. Shearson/American Express, 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1991) (stating precedent is controlling where it “has direct application in a case” even if “it appears to rest on reasons rejected in some other line of decisions.”)) and relief is denied on this ground. III. We review a district court’s inter.pretation of the Sentencing Guidelines de novo. United States v. Gadison, 8 F.3d 186,193 (5th Cir.1993). Generally, sentences for misdemeanor and petty offenses are counted in the calculation of a defendant’s criminal history score. U.S.S.G. § 4A1.2(e). However, certain offenses or offenses similar to them are excluded unless the sentence was a term of probation of at least one year or a term of imprisonment of at least 30 days, or the prior offense is similar to the current offense. U.S.S.G. § 4A1.2(c)(l). In addition, certain other offenses are always excluded. U.S.S.G. § 4A1.2(c)(2). Criminal mischief is not an offense that is always excluded pursuant to § 4A1.2(c)(2). However, because criminal mischief is not similar to illegal reentry into the United States, and since Appellant’s criminal mischief sentence was only a fine of $182.50 (not probation of at least one year or imprisonment of at least 30 days), the criminal mischief conviction should be excluded from his criminal history score if it is similar to one of the offenses listed in § 4A1.2(c)(l). Appellant argues that criminal mischief is similar to § 4A1.2(c)(l)’s exempted offense of disorderly conduct. In United States v. Hardeman, 933 F.2d 278 (5th Cir.1991), we explained how to determine whether a prior offense is “similar” to one of the exempted offenses in § 4A1.2(c)(l). We suggested a “common sense approach which relies" }, { "docid": "11486937", "title": "", "text": "1992)). . We note that a violation of the criminal damage to property statute can result in a Class A misdemeanor or a Class 4, 3 or 2 felony. See 720 ILCS 5/21-2. A violation of the disorderly conduct statute ranges from a Class C misdemeanor to a Class 4 felony. See 720 ILCS 5/26-1(b). . See United States v. Kemp, 938 F.2d 1020, 1023-24 (9th Cir.1991) (\"Recognizing that the Sentencing Guidelines are used nationally to determine federal sentences for federal crimes, the district court must examine federal law to determine whether the substance of the underlying state conviction is similar to an included or excluded offense.”); Unger, 915 F.2d at 763 (\"The classification of an offense as within or without the ambit of section 4A1.2(c) as a whole, or either of its subsections, is a question of federal law, not state law, notwithstanding that the predicate offense and punishment are defined by state law.”) (citing Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 111-12, 103 S.Ct. 986, 991, 74 L.Ed.2d 845 (1983) (“ ‘conviction’ for purposes of 18 U.S.C. §§ 922(g) & (h) is a matter of federal law”)); accord United States v. Rayner, 2 F.3d 286, 287 (8th Cir.1993) (relying on Unger, rejecting defendant’s contention \"that the court should look to state law to determine whether a prior sentence counts for criminal history purposes”). . The two appellate courts that have set forth generic tests for measuring similarity are the Fifth and the Ninth Circuits. The Ninth Circuit test for determining whether an offense is similar to those § 4A 1.2(c) offenses excluded from a defendant’s criminal history was presented in United States v. Martinez, 905 F.2d 251 (9th Cir.1990). The Fifth Circuit’s approach, discussed in more detail in the text, was set forth by that court in United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.1991); see also United States v. West, 58 F.3d 133, 139 (5th Cir.1995) (engaging in Hardeman factor analysis). . We note that the sentence of one month’s court supervision is a considerably lesser penalty than § 4A1.2(c)'s “triggering period” of" }, { "docid": "23697709", "title": "", "text": "motion, and imposed a fifty-four month sentence, holding that a four-level upward departure was justified by the injury to a third-party victim. This sentence was identical to the original sentence ■ previously reversed by this Court. In imposing this sentence, the district court expressed its disagreement with our prior decision. Moore appeals, challenging the use of the misdemeanor offense to increase his criminal history category, the use of Officer Ollie’s injury to justify upward departure, and the fact that he received the identical sentence on resentencing. Discussion I. Similarity of Prior Offense Moore contends that because his pri- or conviction for evading arrest is similar to the crime of resisting arrest, but dissimilar to the instant conviction of assaulting a police officer, he should not have received a one-point increase in his criminal history category shifting him from category I to category II under U.S.S.G. § 4A1.2(c). In reviewing this claim, “we must accept the factual findings of the district court unless clearly erroneous, but we review de novo the application of the guidelines for errors of law.” United States v. Lara, 975 F.2d 1120, 1123 (5th Cir.1992). U.S.S.G. § 4A1.2(c) provides that “sentences for the following [listed] prior offenses and offenses similar to them, ... are counted only if ... (B) the prior offense was similar to an instant offense.” Listed prior offenses included “[hjindering or failure to obey a police officer, ... Resisting arrest.” Id. Thus, where a prior offense is not specifically listed under section 4A1.2(c), the offense, to be counted in the criminal history score, must be similar both to one listed in section 4A1.2(c) and to the instant offense on which the sentence is being computed. In United States v. Hardeman, 933 F.2d 278, 281-282 (5th Cir.1991), we created a “common sense” approach to determining whether a prior offense was similar to a listed offense for purposes of section 4A1.2(c). We applied the Hardeman test to determine whether the prior offense was similar to the instant offense in United States v. Schneider, Nos. 92-3023 & 92-2386, at 15 (5th Cir. Nov. 18, 1992) [979 F.2d" }, { "docid": "18199156", "title": "", "text": "intent than overindulgence in non-eontrolled substance); United States v. Dillon, 905 F.2d 1034, 1039 (7th Cir.1990) (finding prior conviction for resisting arrest and battery not “similar to” offenses listed in § 4A1.2(c)(l), where none of the listed offenses was similar to battery). We find it hard to believe that possessing a police radio is more serious than hindering or failing to obey a police officer, leaving the scene of an accident, furnishing false information to a police officer, resisting arrest, reckless driving, or contempt of court, all of which are enumerated in § 4A1.2(c)(2). A person commits misdemeanor resisting arrest in Indiana, for example, when that person “knowingly or intentionally forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of his duties as an officer.” Ind.Code § 35-44-3-3(a)(l). The Indiana Supreme Court has held that one “forcibly resists” within the meaning of the statute when “strong, powerful, violent means are used to evade a law enforcement official’s rightful exercise of his or her duties.” Spangler v. State, 607 N.E.2d 720, 723 (Ind.1993). In addition, misdemeanor resisting arrest in Indiana is a class A misdemeanor, carrying with it a punishment of up to one year in prison and a $5000 fine. Ind.Code §§ 35-44-3-3(a); 35-50-3-2. Hagenow’s prior conviction, in contrast, was a class B misdemeanor with a lower maximum punishment of only 180 days in prison and a $1000 fine. Ind.Code §§ 35-44-3-12; 35-50-3-3. Common sense tells us that possessing a police scanner is not “categorically more serious” than resisting arrest, and if resisting arrest can be excluded from a defendant’s criminal history, so should the mere possession of a police scanner. The inclusion of a criminal history point for Hagenow’s prior conviction for possessing a police scanner placed him in Criminal History Category IV and resulted in a sentencing range of 51 to 63 months. The district court selected a sentence at the middle of this range, 57 months. Had the conviction been properly excluded, Mage-now’s criminal history would have placed him in Criminal" }, { "docid": "22939304", "title": "", "text": "v. Martinez, 905 F.2d 251, 253 (9th Cir.1990). It maintains that such a method would run counter to the Sentencing Reform Act’s attempt to provide uniform treatment for similarly situated defendants. United States v. Unger, 915 F.2d 759, 762-63 (1st Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1005, 112 L.Ed.2d 1088 (1991). The Government suggests instead that we compare the elements and purposes of each offense to determine whether they are similar. It contends that failure to obtain insurance demonstrates not simply indifference to the law, but indifference toward the public generally by leaving- other persons exposed to financial risk. This offense, it argues, contains this additional element which driving without a license does not, thus making them dissimilar. Cases in other circuits have rather strictly followed the listed offenses and have generally been reluctant to expand the number of offenses which are “similar” to those listed. The opinions, however, provide little in the way of guidance and they fail to establish any kind of analytical framework from which to approach this issue. Most simply state, usually in a paragraph or less, that the offense the defendant is charged with is not similar to a listed offense. See, e.g., Unger, 915 F.2d at 763 (“[ujnder no stretch of the imagination” can the conduct underlying prior juvenile offense for waywardness be considered similar to status offenses like loitering); United States v. Russell, 913 F.2d 1288, 1294 (8th Cir.1990) (rejecting argument that conviction for assault and criminal damage to property is similar to disorderly conduct or disturbing the peace); cert. denied, — U.S. -, 111 S.Ct. 1687, 114 L.Ed.2d 81 (1991); United States v. Dillon, 905 F.2d 1034 (7th Cir.1990) (“While the exempted offenses listed by [defendant] are similar to the resisting arrest aspect of his prior offense, none of the exempted offenses is similar to the battery aspect of [defendant’s] prior conviction.”); United States v. Lewis, 896 F.2d 246, 250 (7th Cir.1990) (operating a motor vehicle while intoxicated is “under no stretch of the imagination” similar to any of the listed offenses). The only decision outlining a position in any" }, { "docid": "2168551", "title": "", "text": "at least one year on probation. See generally United States v. Boyd, 146 F.3d 499, 501 (7th Cir.1998) (explaining how this circuit determines whether an offense is similar to those listed in the guideline). We have our doubts about the validity of that assumption, as Illinois conditions a conviction for domestic battery on proof that the defendant intentionally or knowingly in flicted bodily harm upon, or made physical contact of an insulting or provocative nature with, a family or household member. 720 Ill. Comp. Stat. 5/12—3.2(a); see United States v. Dillon, 905 F.2d 1034, 1039 (7th Cir.1990) (sentence for resisting arrest and battery on police officer properly counted pursuant to section 4A1.2(c)(1), as battery component of conviction was not similar to offenses listed in guideline); see also United States v. Horton, 158 F.3d 1227 (11th Cir.1998) (per curiam) (simple assault is not similar to offenses listed in guideline) (collecting cases). We may set that issue aside, however. Even assuming that domestic battery is similar to the listed offenses, Zuniga-Lazaro’s sentence would be excluded from the criminal history computation only if we agreed with him that a one-year sentence of conditional discharge is not the functional equivalent of a one-year sentence of probation, which by the plain language of the guideline must be counted. As Zuniga-Lazaro recognizes, our opinion in Caputo holds squarely against him on this point. We reasoned that under Illinois law, conditional discharge “is probation without the probation officer and that is a distinction without a difference so far as the purposes of the guideline exception are concerned.” 978 F.2d at 977; see also United States v. Scott, 19 F.3d 1238, 1246 (7th Cir.1994). Therefore, a defendant sentenced to a year or more of conditional discharge is treated as if he were sentenced to a year or more of probation, and the sentence is counted under section 4A1.2(c)(1). Caputo, 978 F.2d at 976-77. Since we decided Caputo, we have not only reaffirmed its rationale, see United States v. Damico, 99 F.3d 1431, 1438 (7th Cir.1996), but extended it to sentences of court supervision, see Boyd, 146 F.3d at" }, { "docid": "11486939", "title": "", "text": "at least one year of probation or thirty days of imprisonment. . Cf. United States v. Dillon, 905 F.2d 1034, 1039 (7th Cir.1990) (recognizing that resisting arrest is excludable, but that a conviction for battery and resisting arrest required a criminal history point because none of the exempted offenses was similar to the \"battery aspect\" of the conviction); United States v. Russell, 913 F.2d 1288, 1294 (8th Cir.1990) (finding no error in district court’s consideration of state conviction for assault and criminal damage to property when computing criminal history), cert. denied, 500 U.S. 906, 111 S.Ct. 1687, 114 L.Ed.2d 81 (1991). . A disposition of court supervision is a sentencing alternative employed in the discretion of the trial court. People v. Hall, 251 Ill.App.3d 935, 191 Ill.Dec. 161, 163, 623 N.E.2d 751, 753 (1993). When a plea of guilty is entered, the court may order supervision sifter it considers the circumstances of the offense and the “history, character and condition of the offender,” and after it determines that: \"(1) the offender is not likely to commit further crimes; (2) the defendant and the public would be best served if the defendant were not to receive a criminal record; and (3) in the best interests of justice an order of supervision is more appropriate than a sentence otherwise permitted under this Code.\" 730 ILCS 5/5-6-l(c). It is notable that these factors mirror those found in Hardeman. . Consistent with the goal of “avoiding unwarranted sentencing disparities among defendants with similar records,\" 28 U.S.C. § 991(b)(1)(B), we do not \"plumb the nuances,\" Unger, 915 F.2d at 962, of the Illinois definition of \"disorderly conduct.\" The parameters of a listed offense are \"a question of federal law, not state law.” Id. at 963 & n. 5 (noting agreement with the approach articulated by Judge Wallace, concurring in Martinez, that \"the question is one of federal law, pure and simple”). . Two federal appellate decisions have considered whether a criminal history point should be given for the crime of criminal damage to property. Each affirmed the district court’s assessment of a point for the" }, { "docid": "11486940", "title": "", "text": "commit further crimes; (2) the defendant and the public would be best served if the defendant were not to receive a criminal record; and (3) in the best interests of justice an order of supervision is more appropriate than a sentence otherwise permitted under this Code.\" 730 ILCS 5/5-6-l(c). It is notable that these factors mirror those found in Hardeman. . Consistent with the goal of “avoiding unwarranted sentencing disparities among defendants with similar records,\" 28 U.S.C. § 991(b)(1)(B), we do not \"plumb the nuances,\" Unger, 915 F.2d at 962, of the Illinois definition of \"disorderly conduct.\" The parameters of a listed offense are \"a question of federal law, not state law.” Id. at 963 & n. 5 (noting agreement with the approach articulated by Judge Wallace, concurring in Martinez, that \"the question is one of federal law, pure and simple”). . Two federal appellate decisions have considered whether a criminal history point should be given for the crime of criminal damage to property. Each affirmed the district court’s assessment of a point for the offense. See United States v. Wyatt, 19 F.3d 1283, 1285 (8th Cir.1994) (concluding that state misdemeanor conviction for criminal damage to property properly earned a criminal history point because the defendant had received a one-year probationary sentence and because the offense was \"unlike those offenses that never earn criminal history points”); United States v. Russell, 913 F.2d 1288, 1294 (8th Cir.1990) (rejecting defendant's argument that state convictions for assault and criminal damage to property are akin to disorderly conduct or to disturbing the peace; finding no error in counting those convictions to compute criminal history), cert. denied, 500 U.S. 906, 111 S.Ct. 1687, 114 L.Ed.2d 81 (1991); cf. People v. Robie, 92 Ill.App.3d 1059, 48 Ill.Dec. 481, 484, 416 N.E.2d 754, 757 (1981) (noting that, under the circumstances of the case, criminal damage to property is a serious offense). . Mr. Booker pleaded guilty to possession of ten grams of crack cocaine in violation of 21 U.S.C. § 844. When the court assessed a criminal history point for Mr. Booker's misdemeanor conviction in addition to" }, { "docid": "15587440", "title": "", "text": "for Martinez’s two 1985 convictions for selling Transit Authority bus transfer tickets (“transfer scalping”), in violation of N.Y. General Business Law § 120 (McKinney 1988). The combination of his offense level of 20 and criminal history category V resulted in a Guideline range of 63 to 78 months imprisonment. At sentencing Martinez argued that these three convictions should have been excluded from his criminal history score because they are “similar” to the offenses exempted from a defendant’s criminal history under U.S.S.G. § 4A1.2(c). Had this argument been accepted, Martinez’s criminal history score would have been nine, not 12, his criminal history category would have been IV, not V, and the applicable Guidelines range would have been 51 to 63 months, not 63 to 78. The district court rejected this argument and ruled that the offenses should each be counted because fare beating and transfer Scalping “hurt society generally and hence are not completely victimless crimes.” This appeal followed. II. Discussion In this court, Martinez argues that the district court erred in its analysis of his past convictions, and that under a proper reading of § 4A1.2(c), his criminal history score should be only nine points. Before turning to the merits of this claim, we note that we review a district court’s interpretation and application of the Guidelines de novo, see, e.g., United States v. Zagari, 111 F.3d 307, 323 (2d Cir.1997), and its findings of fact for clear error, id. We also note that other circuits have uniformly found the classification of offenses as “similar” to the offenses listed in § 4A1.2(c) to be a matter of federal law, even though the prior offenses are defined and the sentences imposed under state law. See United States v. Rayner, 2 F.3d 286, 287 (8th Cir.1993); United States v. Kemp, 938 F.2d 1020, 1023-24 (9th Cir.1991); United States v. Unger, 915 F.2d 759, 762-63 (1st Cir.1990). We agree, and hold that classification of unlisted offenses pursuant to § 4A1.2(e) is a matter of federal law. A. U.S.S.G. § 4A1.2(c) Chapter Four, Part A of the Guidelines sets out the procedure for calculating" }, { "docid": "18199155", "title": "", "text": "guidelines stating that the listed offenses and those “similar to” them were to be excluded from the criminal history computation, so long as, in the case of § 4A1.2(c)(2), the sentence did not exceed certain thresholds. The government’s explanation of why a police scanner should be counted in determining a defendant’s criminal history — -“possessing a police scanner is a way for individuals engaged in criminal conduct to avoid being apprehended” — sounds remarkably like a description for hindering police or resisting arrest. See, e.g., Ind.Code § 35-44-3-3(a)(2) (stating that a person commits misdemeanor resisting law enforcement when he or she “forcibly resists, obstructs, or interferes with the authorized service or execution of a civil or criminal process or order of a court”). The government has also not identified to us any quality about possessing a police scanner that makes it more serious than the enumerated crimes. Cf. Roy, 126 F.3d at 955 (finding marijuana use not “similar to” public intoxication because decision to use an illicit drug is more culpable and involves more criminal intent than overindulgence in non-eontrolled substance); United States v. Dillon, 905 F.2d 1034, 1039 (7th Cir.1990) (finding prior conviction for resisting arrest and battery not “similar to” offenses listed in § 4A1.2(c)(l), where none of the listed offenses was similar to battery). We find it hard to believe that possessing a police radio is more serious than hindering or failing to obey a police officer, leaving the scene of an accident, furnishing false information to a police officer, resisting arrest, reckless driving, or contempt of court, all of which are enumerated in § 4A1.2(c)(2). A person commits misdemeanor resisting arrest in Indiana, for example, when that person “knowingly or intentionally forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of his duties as an officer.” Ind.Code § 35-44-3-3(a)(l). The Indiana Supreme Court has held that one “forcibly resists” within the meaning of the statute when “strong, powerful, violent means are used to evade a law enforcement official’s rightful exercise" }, { "docid": "15587447", "title": "", "text": "the listed and unlisted offenses, the perceived seriousness of the offense as indicated by the level of punishment, the elements of the offense, the level of culpability involved, and the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct. 933 F.2d at 281 (emphasis supplied). As the Fifth Circuit explained, this method allows the district court “to screen out past conduct which is of such minor significance that it is not relevant to the goals of sentencing.” Id. This non-exhaustive list of factors is intended to help the district court “take into account the relative severity of a prior offense as well as the degree to which it indicates the likelihood of future criminal behavior.” United States v. Gadison, 8 F.3d 186, 193 (5th Cir.1993). The First, Third, and Fourth Circuits subscribe to a more limited approach to the determination of similarity. These circuits endorse an interpretation of “similar” that focuses on the degree of commonality between the “elements” or “substance” of the conduct underlying the Listed Offenses and the conduct underlying potentially “similar” offenses. See United States v. Harris, 128 F.3d 850, 853-55 (4th Cir.1997) (crime of selling alcohol to a minor is not similar to the Listed Offenses because the crime does not “share common elements with any of the listed offenses”); United States v. Elmore, 108 F.3d 23, 26- 27 (3d Cir.1997) (rejecting defendant’s argument that his prior convictions for harassment, assault and possession of drug paraphernalia are similar to the Listed Offense of disorderly conduct); Unger, 915 F.2d at 762-63 (court should look to the “conduct underlying defendant’s three juvenile adjudications” to determine whether they were status offenses such as those listed under § 4A1.2(c)(2)). Of the remaining circuits, the Ninth has articulated the applicable test in two different ways. See United States v. Sandoval, 152 F.3d 1190, 1192 (9th Cir.1998). The first was adopted in United States v. Martinez (Clyde), 905 F.2d 251 (9th Cir.1990). There, the court analyzed the offenses listed in § 4A1.2(c)(2) and concluded that they “are excluded ... because they are of such minor significance" }, { "docid": "22939305", "title": "", "text": "simply state, usually in a paragraph or less, that the offense the defendant is charged with is not similar to a listed offense. See, e.g., Unger, 915 F.2d at 763 (“[ujnder no stretch of the imagination” can the conduct underlying prior juvenile offense for waywardness be considered similar to status offenses like loitering); United States v. Russell, 913 F.2d 1288, 1294 (8th Cir.1990) (rejecting argument that conviction for assault and criminal damage to property is similar to disorderly conduct or disturbing the peace); cert. denied, — U.S. -, 111 S.Ct. 1687, 114 L.Ed.2d 81 (1991); United States v. Dillon, 905 F.2d 1034 (7th Cir.1990) (“While the exempted offenses listed by [defendant] are similar to the resisting arrest aspect of his prior offense, none of the exempted offenses is similar to the battery aspect of [defendant’s] prior conviction.”); United States v. Lewis, 896 F.2d 246, 250 (7th Cir.1990) (operating a motor vehicle while intoxicated is “under no stretch of the imagination” similar to any of the listed offenses). The only decision outlining a position in any depth is the Ninth Circuit’s opinion in United States v. Martinez, 905 F.2d 251 (9th Cir.1990). The majority in that case adopted an approach which examines the level of culpability involved in the offenses being compared and the degree to which the unlisted offense indicates a likelihood of recurring criminal conduct. Judge Wallace in his concurring opinion took exception to the majority’s approach and stated that the court should simply compare the elements of the listed and unlisted offense to determine whether the two offenses are similar. See also Unger, 915 F.2d at 762 n. 5 (explicitly rejecting Martinez majority’s approach and accepting position of J. Wallace). He also noted that the method adopted by the majority is less useful when analyzing the offenses in subsection (c)(1), the section we address here, because that section contains offenses which do exhibit an element of culpable conduct. Id. at 256. The offenses listed in subsection (c)(2), in contrast, are rather innocuous offenses such as loitering or hitchhiking, offenses which are easily distinguishable from violations involving a greater" }, { "docid": "22071228", "title": "", "text": "United States v. Unger, 915 F.2d 759, 763 (1st Cir.1990); see also United States v. Martinez, 905 F.2d 251, 255 (9th Cir.1990) (Wallace, J., concurring). Under this approach, the court compares the elements of a prior offense to the elements of the relevant offense listed in Section 4A1.2(c). Other courts apply a multi-factored test to determine whether two offenses are “similar.” E.g., United States v. Booker, 71 F.3d 685, 689-90 (7th Cir.1995); United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.1991); Martinez, 905 F.2d at 253-54. Under this approach, courts examine factors such as “a comparison of punishments imposed for the listed and unlisted offenses, the perceived seriousness of the offense as indicated by the level of punishment, the elements of the offense, the level of culpability involved, and the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct.” Hardeman, 933 F.2d at 281; see also Booker, 71 F.3d at 689 (considering the Hardeman factors). Courts using the multi-factored approach generally include the elements of the offense as one of the relevant factors. See, e.g., Booker, 71 F.3d at 689; Hardeman, 933 F.2d at 281. As Hardeman illustrates, the approach of the circuits to the similarity inquiry overlaps. Many circuits appear to recognize that the elements of the offense must play a significant role in determining whether two offenses are “similar” for purposes of Section 4A1.2(e). After all, offenses do consist of the essential elements of the crime. An emphasis on the elements comports with the plain meaning of “similar.” When two items are “similar,” they are “[n]early corresponding; resembling in many respects.” Black’s Law Dictionary 1240 (5th ed.1979). Thus, when two offenses are similar, their essential elements are “nearly corresponding” or “resembling in many respects.” By contrast, some of the factors used in the multi-factor tests leave the law indeterminate. For example, the Ninth Circuit considers, among other factors, whether conduct “is universally regarded as culpable.” Martinez, 905 F.2d at 254. It undertakes this inquiry by looking to the Model Penal Code and the laws of other jurisdictions. Id. at 253-54. But" }, { "docid": "5893383", "title": "", "text": "effect at the time of Borer’s offense should be applied, and that Borer is entitled to an additional one-level reduction under § 3E1.1(b)(2). II. Borer contends that the district court improperly assessed one criminal history point based on a conviction in November 2002 for criminal mischief under Nebraska law. The conviction arose out of an incident during which Borer became upset with his estranged wife when he was picking up his children, grabbed a cell phone from one of his children, and broke the phone by throwing it on the ground. He was sentenced to six months probation and required to pay $80 in restitution. Borer argues that this misdemeanor offense is “similar to” the offenses of disorderly conduct and disturbing the peace, which are excluded from counting under USSG § 4A1.2(c)(l), and that the district court should have refrained from assessing a criminal history point on that basis. We review de novo the district court’s construction and interpretation of the criminal history provisions of the sentencing guidelines, and we review for clear error the district court’s application of the guidelines to the facts. United States v. Jones, 87 F.3d 247, 248 (8th Cir.1996). Under USSG § 4A1.2(c)(1), an offense that is “similar to” disorderly conduct or disturbing the peace would not be counted in Borer’s case unless the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days. We have held previously that the offense of “Assault and Criminal Damage to Property” is not similar to the offenses of disorderly conduct or disturbing the peace for purposes of § 4A1.2(c)(1). United States v. Russell, 913 F.2d 1288, 1294 (8th Cir.1990). We now reach the same conclusion regarding the offense of criminal mischief under Nebraska law. To determine whether two crimes are “similar” for purposes of § 4A1.2(c), we have endeavored to “compare the resemblance and character of the offenses.” United States v. Webb, 218 F.3d 877, 881 (8th Cir.2000); see also United States v. Mitchell, 941 F.2d 690, 691 (8th Cir.1991) (“similar to” must be given its normal" }, { "docid": "23351706", "title": "", "text": "661 (1988). That count was dismissed on the government's motion at the time sentence was imposed. . A constitutionally invalid prior conviction cannot be the basis for increasing a defendant’s criminal history score. U.S.S.G. § 4A1.2, application note 6. . The assessment was premised on U.S.S.G. § 4A1.2(d)(2)(A), which instructs the reader to \"add 2 points under § 4A 1.1(b) for each adult or juvenile sentence of confinement of at least sixty days if the defendant was released from such confinement with five years of his commencement of the instant offense.” Because Unger’s immurement at the Training School exceeded sixty days and occurred less than five years before the events underlying the crime charged in this case, section 4A1.2(d)(2)(A) applies on its face. See United States v. Williams, 891 F.2d 212, 215-16 (9th Cir.1989) (commitment to juvenile hall is “confinement” for purposes of § 4A1.2(d)(2)(A)), cert. denied, — U.S. -, 110 S.Ct. 1496, 108 L.Ed.2d 631 (1990). . Because we uphold the district court’s finding that Unger knowingly and intelligently waived his right to counsel, we need not explore the interrelationship between the Baldosar doctrine and the sentencing guidelines. . Although we agree with the Ninth Circuit that state law does not govern the classification of offenses for purposes of § 4A1.2(c), we eschew the majority approach in Martinez, which determined the categorization question by resort to a \"consensus” of American jurisdictions. Martinez, 905 F.2d at 253-54. We share instead Judge Wallace’s view, id. at 255-56 (Wallace, J., concurring), that the question is one of federal law, pure and simple. . U.S.S.G. § 4A1.2(c) reads in pertinent part: ... Sentences for misdemeanor and petty offenses are counted [in compiling an offender’s criminal history score], except as follows: (1) Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are counted only if (A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense: Contempt of court Disorderly conduct or disturbing" }, { "docid": "2168550", "title": "", "text": "he raised no objection below to the inclusion of these two sentences in his criminal history score', our review is for plain error alone. E.g., United States v. Frazier, 213 F.3d 409, 417-18 (7th Cir.2000). The court did not plainly err by assigning a criminal history point to the sentence of conditional discharge. Section 4A1.2(c)(1)(A) provides that sentences for misdemeanor and petty offenses are counted in the criminal history' score, except that sentences for 15 identified offenses ranging from careless or reckless driving to trespassing' — and for other offenses similar to those listed — are to be counted in the criminal history computation only if “the sentence was a term of probation of at least one year oh a term of imprisonment of at least thirty days.” The parties assume that domestic battery, although not one of the crimes listed in the section 4A1.2(e)(l)(A), is an offense similar to those listed, such that his domestic battery sentence can only be counted if it required him to spend at least 30 days in jail or at least one year on probation. See generally United States v. Boyd, 146 F.3d 499, 501 (7th Cir.1998) (explaining how this circuit determines whether an offense is similar to those listed in the guideline). We have our doubts about the validity of that assumption, as Illinois conditions a conviction for domestic battery on proof that the defendant intentionally or knowingly in flicted bodily harm upon, or made physical contact of an insulting or provocative nature with, a family or household member. 720 Ill. Comp. Stat. 5/12—3.2(a); see United States v. Dillon, 905 F.2d 1034, 1039 (7th Cir.1990) (sentence for resisting arrest and battery on police officer properly counted pursuant to section 4A1.2(c)(1), as battery component of conviction was not similar to offenses listed in guideline); see also United States v. Horton, 158 F.3d 1227 (11th Cir.1998) (per curiam) (simple assault is not similar to offenses listed in guideline) (collecting cases). We may set that issue aside, however. Even assuming that domestic battery is similar to the listed offenses, Zuniga-Lazaro’s sentence would be excluded from the" }, { "docid": "15587441", "title": "", "text": "past convictions, and that under a proper reading of § 4A1.2(c), his criminal history score should be only nine points. Before turning to the merits of this claim, we note that we review a district court’s interpretation and application of the Guidelines de novo, see, e.g., United States v. Zagari, 111 F.3d 307, 323 (2d Cir.1997), and its findings of fact for clear error, id. We also note that other circuits have uniformly found the classification of offenses as “similar” to the offenses listed in § 4A1.2(c) to be a matter of federal law, even though the prior offenses are defined and the sentences imposed under state law. See United States v. Rayner, 2 F.3d 286, 287 (8th Cir.1993); United States v. Kemp, 938 F.2d 1020, 1023-24 (9th Cir.1991); United States v. Unger, 915 F.2d 759, 762-63 (1st Cir.1990). We agree, and hold that classification of unlisted offenses pursuant to § 4A1.2(e) is a matter of federal law. A. U.S.S.G. § 4A1.2(c) Chapter Four, Part A of the Guidelines sets out the procedure for calculating a defendant’s criminal history score. As the Introductory Commentary to the chapter explains, an assessment of criminal history is made because “[a] defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment.” The chapter begins with section 4A1.1, which gives an overview of the scoring system. Section 4A1.1, among other things, assigns between one and three points for each prior conviction based on the length of the sentence imposed. Section 4A1.2 further elaborates on the point system established by § 4A1.1. Subsection (c) of § 4A1.2 explains which prior sentences should be excluded from the criminal history score. Because the proper interpretation of this subsection is the only issue in this appeal, we quote it in its entirety: § 4A1.2(c). Sentences Counted and Excluded Sentences for all felony offenses are counted. Sentences for misdemeanor and petty offenses are counted, except as follows: (1) Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are counted only if" }, { "docid": "22071227", "title": "", "text": "§ 4A1.2(c). The Guidelines further provide that “[sentences for misdemeanor and petty offenses are counted” unless they fall within a narrow exception. Id. Section 4A1.2(c) does create a limited exception to this general presumption. For a small category of minor offenses — hitchhiking, juvenile status offenses and truancy, loitering, minor traffic infractions, public intoxication, and vagrancy — prior sentences “are never counted.” U.S.S.G. § 4A1.2(c)(2). For a larger category of offenses, a prior sentence is excluded if it was less than one year probation or thirty days imprisonment and if it was not similar to the instant offense. U.S.S.G. § 4A1.2(c)(l). For both categories, a prior sentence for an offense that is “similar” to a listed offense also may quali fy for the exclusion. U.S.S.G. § 4A1.2(c)(1)-(2). The Guidelines do not define “similar,” and this circuit has not interpreted the term. Other circuits have adopted a variety of approaches for determining whether two offenses are “similar.” Some circuits define “similar” to mean “similar elements.” E.g., United States v. Elmore, 108 F.3d 23, 27 (3d Cir.1997); United States v. Unger, 915 F.2d 759, 763 (1st Cir.1990); see also United States v. Martinez, 905 F.2d 251, 255 (9th Cir.1990) (Wallace, J., concurring). Under this approach, the court compares the elements of a prior offense to the elements of the relevant offense listed in Section 4A1.2(c). Other courts apply a multi-factored test to determine whether two offenses are “similar.” E.g., United States v. Booker, 71 F.3d 685, 689-90 (7th Cir.1995); United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.1991); Martinez, 905 F.2d at 253-54. Under this approach, courts examine factors such as “a comparison of punishments imposed for the listed and unlisted offenses, the perceived seriousness of the offense as indicated by the level of punishment, the elements of the offense, the level of culpability involved, and the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct.” Hardeman, 933 F.2d at 281; see also Booker, 71 F.3d at 689 (considering the Hardeman factors). Courts using the multi-factored approach generally include the elements of the offense as" } ]

[ { "docid": "17144276", "title": "", "text": "the questioning of Newton falls within the “public safety” exception to the normal requirements under Miranda carved out by the Supreme Court in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). In Quarles, a woman told two police officers on patrol she had just been raped and that the perpetrator had entered a nearby supermarket. She gave the officers a detailed description of the man and advised them that he was carrying a firearm. After they entered the supermarket, the officers saw a man who fit the description who then fled toward the back of the store. The officers pursued the man, quickly apprehended him, and frisked him. No gun was found, but the officers observed that the suspect was wearing an empty holster. An officer handcuffed the suspect and, without giving the Miranda warnings, asked him where the gun was. The man “nodded in the direction of some empty cartons and re sponded, ‘the gun is over there.’” Id. at 652, 104 S.Ct. at 2629. The officers searched the empty cartons and found a firearm. At that point, the officers notified the suspect he was under arrest and read him the Miranda warnings. Quarles moved to suppress the statements and the gun. The Court held that “on these facts there is a ‘public safety’ exception to the requirement that Miranda warnings must be given before a suspect’s answers may be admitted into evidence.” Id. at 655, 104 S.Ct. at 2681. Under the exception, when officers ask “questions necessary to secure their own safety or the safety of the public,” the responses of a suspect may be admitted even if the Miranda warnings have not been administered. Id. at 659, 104 S.Ct. at 2633. The officers in Quarles had “every reason to believe” the gun was concealed somewhere in the supermarket. Id. at 657, 104 S.Ct. at 2632. It therefore posed a danger to the public and the police because “an accomplice might make use of it [or] a customer or employee might later come upon it.” Id. The limits of Quarles’ “public safety”" } ]

[ { "docid": "9463115", "title": "", "text": "custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” See Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); see also Muniz, 496 U.S. at 600-01, 110 S.Ct. 2638; accord United States v. Carmona, 873 F.2d 669, 573 (2d Cir.1989); United States v. Adegbite, 846 F.2d 834, 838 (2d Cir.1988). The Supreme Court has explained that “any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining what the police reasonably should have known.” Muniz, 496 U.S. at 601, 110 S.Ct. 2638 (internal quotation marks omitted). 1 The collection of biographical or pedigree information through a law enforcement officer’s questions during the non-investigative booking process that typically follows a suspect’s arrest, however, does not ordinarily implicate the prophylactic protections of Miranda, which are designed to protect a suspect only during investigative custodial interrogation. Such interrogations customarily involve questions of a different character than those that are normally and reasonably related to police administrative concerns. See id. at 601-02, 110 S.Ct. 2638; Carmona, 873 F.2d at 573; accord Rodney, 85 N.Y.2d at 292-94, 624 N.Y.S.2d 95, 648 N.E.2d 471. In Muniz, the Supreme Court explained that “a routine booking question exception ... exempts from Miranda’s coverage questions to secure the biographical data necessary to complete booking or pretrial services” and that permissible questions •include those that “appear reasonably related. to the police’s administrative concerns.” 496 U.S. at 601-02,110 S.Ct. 2638 (quotation marks omitted); see also United States v. Gotchis, 803 F.2d 74, 79 (2d Cir.1986); cf. Rodney, 85 N.Y.2d at 292-93, 624 N.Y.S.2d 95, 648 N.E.2d 471 (noting that “responses to routine booking questions-pedigree questions, as we have referred to them-are not suppressible even when obtained in violation of Miranda\" and that such questions avoid any ground for challenging the voluntariness of a statement made in response to the questions). Whether the information gathered turns out to be incriminating in some respect does not, by itself, alter the general rule that" }, { "docid": "9463116", "title": "", "text": "are normally and reasonably related to police administrative concerns. See id. at 601-02, 110 S.Ct. 2638; Carmona, 873 F.2d at 573; accord Rodney, 85 N.Y.2d at 292-94, 624 N.Y.S.2d 95, 648 N.E.2d 471. In Muniz, the Supreme Court explained that “a routine booking question exception ... exempts from Miranda’s coverage questions to secure the biographical data necessary to complete booking or pretrial services” and that permissible questions •include those that “appear reasonably related. to the police’s administrative concerns.” 496 U.S. at 601-02,110 S.Ct. 2638 (quotation marks omitted); see also United States v. Gotchis, 803 F.2d 74, 79 (2d Cir.1986); cf. Rodney, 85 N.Y.2d at 292-93, 624 N.Y.S.2d 95, 648 N.E.2d 471 (noting that “responses to routine booking questions-pedigree questions, as we have referred to them-are not suppressible even when obtained in violation of Miranda\" and that such questions avoid any ground for challenging the voluntariness of a statement made in response to the questions). Whether the information gathered turns out to be incriminating in some respect does not, by itself, alter the general rule that pedigree questioning does not fall under the strictures of Miranda. See Gotchis, 803 F.2d at 79 (affirming admission of defendant’s response to a pedigree question, even though the response helped establish defendant’s intent to commit the crime with which he was charged); United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1112 (2d Cir.1975) (affirming admission of defendant’s response to a pedigree question, even though the response helped establish the identity of defendant as the rapist in question). In thi~ case, the appellate division correctly determined that Arroyo's \"inquiry as to [Rosa's] actual hair color was reasonably related to administrative concerns, and was neither intended, nor reasonably likely, to elicit an incriminating respoitse~\" Rosa, 294 A.D.2d at 160, 743 N.Y.S.2d 400. Arroyo and Fitzgerald were engaged in a routine administrative process, and the booking. questions were presented to Rosa in the exact order that the questions appeared on the booking form and without any substantive deviation from the form of the questions presented. Spaces were provided on the form for the entry of basic" }, { "docid": "23650576", "title": "", "text": "rights are implicated before a defendant has been arrested. We now re-examine the un-controverted facts for two inquiries, and only two: to determine whether Stewart was deprived of his freedom of action in any significant way; and if so, whether he was interrogated so as to elicit an incriminating response. A. Prior to Officer Twing’s questioning, Stewart had been frisked, placed in handcuffs and told to sit at a specific place on the grass by the side of the road. At that time, the defendants were outnumbered by the police officers. Stewart was not free to go anywhere. His movement was curtailed as if he were handcuffed to a chair in a detective’s office or placed in a holding pen in a station house or put behind bars. We have no difficulty in concluding that Stewart’s freedom of action was curtailed in a very significant way. In New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 2631, 81 L.Ed.2d 550 (1984), the Court found that the suspect was in custody for purposes of Miranda when he was surrounded by at least four police officers and was handcuffed when the questioning took place. The Court observed that, during the questioning, there was nothing to suggest that the officers were concerned for their physical safety. Id. Similarly, in this case, there is nothing to suggest that the police were concerned for their physical safety after Stewart was handcuffed. In United States v. Henley, 984 F.2d 1040, 1042 (9th Cir.1993), the court held that when a suspect, who had not yet been formally arrested, was handcuffed and placed in the back of a police car, he was in custody for Miranda purposes. Accord United States v. Sangineto-Miranda, 859 F.2d 1501, 1515 (6th Cir.1988) (suspect was in custody when he was handcuffed and placed in police car). The facts in United States v. Fazio, 914 F.2d 950 (7th Cir.1990), upon which the district court relied in determining that Stewart was not in custody, did not demonstrate the high degree of curtailment present here. The police restrained Fazio only by asking him to" }, { "docid": "16191903", "title": "", "text": "1990707, at *7 (S.D.N.Y. May 7, 2008)); see also Innis, 446 U.S. at 300, 100 S.Ct. 1682 (“ “Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.’ ”) (quoting Miranda, 384 U.S. at 478, 86 S.Ct. 1602). In addition, the “ ‘routine booking question exception ... exempts from Miranda’s coverage questions to secure the biographical data necessary to complete booking or pretrial services’ and that per missible questions include those that ‘appear reasonably related to the police’s administrative concerns.’ ” Rosa, 396 F.3d at 221 (quoting Pennsylvania v. Muniz, 496 U.S. 582, 601-02, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (alterations in original)). The test for whether the questioning constitutes “interrogation” is objective, but the officer’s subjective intent in asking the question is relevant to the inquiry. See id. (“The test [for interrogation] is objective. The subjective intent of the agent is relevant but not conclusive.”) (parenthetically quoting United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir.1983)); see also United States v. Carr, 63 F.Supp.3d 226, 238 (E.D.N.Y.2014) (“[W]hile the analysis is properly focused on what the officer objectively should have known to be reasonably likely to elicit an incriminating response, see Innis, 446 U.S. at 302, 100 S.Ct. 1682, the subjective intent of an officer in asking a question is a relevant, though not conclusive, part of that inquiry.”) “On a motion to suppress in a criminal trial, the defendant bears the burden of demonstrating the basis for the motion—in this case, that he was subject to custodial interrogation.” Carr, 63 F.Supp.3d at 235 (citing United States v. Funaro, 253 F.Supp.2d 286, 293-94 (D.Conn.2003)); see also United States v. Wyche, 307 F.Supp.2d 453, 457 (E.D.N.Y.2004) (“On a motion to suppress evidence in a criminal trial, once Wyche establishes a basis for his motion, the burden rests upon the Government to prove, by a preponderance of the evidence, the legality of the actions of its officers.”). “Once a basis has been established, ‘the prosecution has the burden of establishing by a preponderance of the evidence that" }, { "docid": "17412645", "title": "", "text": "powers to detain, search, and question individuals even absent any reasonable suspicion of wrongdoing” at “border entry points.” Id. at 16. In support of this argument, the government relies primarily on three cases: Tabbaa v. Chertoff, 509 F.3d 89 (2d Cir.2007), United States v. Silva, 715 F.2d 43 (2d Cir.1983), and Unit ed States v. Rodriguez, 356 F.3d 254 (2d Cir.2004). We address each case in turn. Relying on Tabbaa, the government contends that border questioning requires Miranda warnings only when it becomes “non-routine.” Tabbaa rejected a Fourth Amendment challenge to a series of border searches involving pat downs, fingerprinting, photographing, and questioning lasting several hours. 509 F.3d at 94-95, 100-01. Under Fourth Amendment case law, routine border searches fall within a well-established exception to the warrant requirement. The term “routine” delineates the exception’s scope, thus explaining the term’s significance in this line of jurisprudence. See, e.g., United States v. Montoya de Hernandez, 473 U.S. 531, 538, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) (“Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant....”); United States v. Martinez-Fuerte, 428 U.S. 543, 566, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (authorizing warrantless, suspicionless stops for “brief questioning routinely conducted at permanent checkpoints” near the border). But Supreme Court precedents establish no similar exception to Miranda’s, prophylactic requirement under the Fifth Amendment. Cf. Pennsylvania v. Muniz, 496 U.S. 582, 601-02, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (adopting an exception to Miranda for “routine booking question^]”); New York v. Quarles, 467 U.S. 649, 657-58, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) (recognizing a limited public-safety exception to Miranda); Harris v. New York, 401 U.S. 222, 224-26, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) (holding that statements that were otherwise inadmissible due to a Miranda violation were admissible to impeach the defendant’s trial testimony). Similarly, Tabbaa says nothing about Miranda or the Fifth Amendment, and, indeed, as we have previously said, “whether a ‘stop’ was permissible under [Fourth Amendment doctrine] is irrelevant to the Miranda analysis.” Ali, 68 F.3d at 1473." }, { "docid": "17412646", "title": "", "text": "subject to any requirement of reasonable suspicion, probable cause, or warrant....”); United States v. Martinez-Fuerte, 428 U.S. 543, 566, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (authorizing warrantless, suspicionless stops for “brief questioning routinely conducted at permanent checkpoints” near the border). But Supreme Court precedents establish no similar exception to Miranda’s, prophylactic requirement under the Fifth Amendment. Cf. Pennsylvania v. Muniz, 496 U.S. 582, 601-02, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (adopting an exception to Miranda for “routine booking question^]”); New York v. Quarles, 467 U.S. 649, 657-58, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) (recognizing a limited public-safety exception to Miranda); Harris v. New York, 401 U.S. 222, 224-26, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) (holding that statements that were otherwise inadmissible due to a Miranda violation were admissible to impeach the defendant’s trial testimony). Similarly, Tabbaa says nothing about Miranda or the Fifth Amendment, and, indeed, as we have previously said, “whether a ‘stop’ was permissible under [Fourth Amendment doctrine] is irrelevant to the Miranda analysis.” Ali, 68 F.3d at 1473. Though Tabbaa provides a useful guide for delineating the boundaries of “routineness” as that word is used in the specific context of Fourth Amendment warrantless border searches, its usefulness outside that context is inherently limited. United States v. Irving, 452 F.3d 110, 123 (2d Cir.2006) (discussing the “routine”-bordersearch exception to the Fourth Amendment and noting that “the level of intrusion into a person’s privacy is what determines whether a border search is routine”). Tabbaa does not speak to the primary question we face here: does a border-questioning exception to the requirement of Miranda warnings — whether limited by routineness or not — exist at all. Accordingly, Tabbaa is of little help to the government here. The government argues, however, that Silva establishes just such a border-questioning exception for our circuit. It is Silva, also, that forms the core of the district court’s decision admitting the evidence in this case. In Silva, the defendant was convicted of making a false statement to a federal official and of attempting to bring a large sum of currency into" }, { "docid": "22740920", "title": "", "text": "they confronted Muniz, combined with the detailed instructions and questions concerning the tests and the Commonwealth’s Implied Consent Law, were reasonably likely to elicit an incriminating response, and therefore constituted the “functional equivalent” of express questioning. Rhode Island v. Innis, 446 U. S. 291, 301 (1980). Muniz’s statements to the police in connection with these tests thus should have been suppressed because he was not first given the Miranda warnings. Finally, the officer’s directions to Muniz to count aloud during two of the sobriety tests sought testimonial responses, and Muniz’s responses were incriminating. Because Muniz was not informed of his Miranda rights prior to the tests, those responses also should have been suppressed. I A Justice Brennan would create yet another exception to Miranda: the “routine booking question” exception. See also Illinois v. Perkins, ante, p. 292 (creating exception to Miranda for custodial interrogation by an undercover police officer posing as the suspect’s fellow prison inmate). Such exceptions undermine Miranda’s fundamental principle that the doctrine should be clear so that it can be easily applied by both police and courts. See Miranda, supra, at 441-442; Fare v. Michael C., 442 U. S. 707, 718 (1979); Perkins, ante, at 308-309 (Marshall, J., dissenting). Justice Brennan’s position, were it adopted by a majority of the Court, would necessitate difficult, time-consuming litigation over whether particular questions asked during booking are “routine,” whether they are necessary to secure biographical information, whether that information is itself necessary for recordkeeping purposes, and whether the questions are—despite their routine nature—designed to elicit incriminating testimony. The far better course would be to maintain the clarity of the doctrine by requiring police to preface all direct questioning of a suspect with Miranda warnings if they want his responses to be admissible at trial. B Justice Brennan nonetheless asserts that Miranda does not apply to express questioning designed to secure “‘“biographical data necessary to complete booking or pretrial services,””’ ante, at 601 (citation omitted), so long as the questioning is not “‘designed to elicit incriminatory admissions,’ ” ante, at 602, n. 14 (quoting Brief for United States as Amicus Curiae" }, { "docid": "22198888", "title": "", "text": "be custodial interrogation. The issue here is whether the INS and ATF questioning constituted interrogation for Miranda purposes. As a general rule, interrogation has been defined for this purpose as express questioning or its functional equivalent, which includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Pennsylvania v. Muniz, 496 U.S. 582, 600-01, 110 S.Ct. 2638, 2649, 110 L.Ed.2d 528 (1990) (plurality opinion) (quoting Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)) (emphasis supplied). As indicated by the emphasized language, there exists an exception to Miranda’s coverage for routine booking questions securing “biographical data necessary to complete booking or pretrial services,” Muniz, 496 U.S. at 601, 110 S.Ct. at 2649 (plurality opinion), although this exception does not apply to questions, even during booking, that are designed to elicit incriminatory admissions. Id. at 602 n. 14, 110 S.Ct. at 2650 n. 14. D’Anjou cites to authority in other circuits, primarily the Ninth, that has elaborated upon the booking exception and held that, in certain instances, questioning regarding identity, address or other routine background matters may both be anticipated to provide incriminating evidence and in fact do so, and that such questioning gains no shelter from the booking exception. United States v. Henley, 984 F.2d 1040 (9th Cir.1993); United States v. Gonzalez-Sandoval, 894 F.2d 1043 (9th Cir.1990); United States v. Disla, 805 F.2d 1340 (9th Cir.1986). We do not reach the question of whether we should adopt this judicial gloss to the booking exception because we do not believe that the facts presented would support its application in this case. D’Anjou’s arguments center on Brigham’s questioning regarding his nationality and his address. In this instance, D’Anjou was a legal resident alien, and there was no incriminatory element of the questioning until D’Anjou began supplying false information regarding his citizenship and place of birth. Because the incriminatory element was created by D’Anjou himself through his non-truthful responses, this case is" }, { "docid": "22740896", "title": "", "text": "upon “the perspective of the suspect.” Perkins, ante, at 296. We agree with amicus United States, however, that Muniz’s answers to these first seven questions are nonetheless admissible because the questions fall within a “routine booking question” exception which exempts from Miranda’s coverage questions to secure the “‘biographical data necessary to complete booking or pretrial services.’” Brief for United States as Amicus Curiae 12, quoting United States v. Horton, 873 F. 2d 180, 181, n. 2 (CA8 1989). The state court found that the first seven questions were “requested for record-keeping purposes only,” App. B16, and therefore the questions appear reasonably related to the police’s adminis trative concerns. In this context, therefore, the first seven questions asked at the booking center fall outside the protections of Miranda and the answers thereto need not be suppressed. IV During the second phase of the videotaped proceedings, Officer Hosterman asked Muniz to perform the same three sobriety tests that he had earlier performed at roadside prior to his arrest: the “horizontal gaze nystagmus” test, the “walk and turn” test, and the “one leg stand” test. While Muniz was attempting to comprehend Officer Hosterman’s instructions and then perform the requested sobriety tests, Muniz made several audible and incriminating statements. Muniz argued to the state court that both the videotaped performance of the physical tests themselves and the audiorecorded verbal statements were introduced in violation of Miranda. The court refused to suppress the videotaped evidence of Muniz’s paltry performance on the physical sobriety tests, reasoning that “‘[Requiring a driver to perform physical [sobriety] tests . . . does not violate the privilege against self-incrimination because the evidence procured is of a physical nature rather than testimonial.’” 377 Pa. Super., at 387, 547 A. 2d, at 422 (quoting Commonwealth v. Benson, 280 Pa. Super., at 29, 421 A. 2d, at 387). With respect to Muniz’s verbal statements, however, the court concluded that “none of Muniz’s utterances were spontaneous, voluntary verbalizations,” 377 Pa. Super., at 390, 547 A. 2d, at 423, and because they were “elicited before Muniz received his Miranda warnings, they should have been excluded" }, { "docid": "9463118", "title": "", "text": "identifying information, including Rosa's name, date of birth, age, race, height, weight, eye color, and hair color. Hair color-like eye color, skin tone, or other personal physical characteristics-is a common element of pedig'ree information. Proper completion of the booking form in this case required the officer to complete the relevant portions of the form by filling in the correct information pertaining to the various elements that comprise the basic personal physical characteristics, including hair color. Moreover, if the officer perceives-either through direct observation or otherwise-that a specific piece of information provided by the arrestee is patently incorrect, then it is not only reasonable, but arguably the officer's duty, to inquire further. We hold that Arroyo was engaged in a booking process that was reasonably related to police administrative concerns. But of course \"recognizing a booking exception to Miranda does not mean ... that any question asked during the booking process falls within that exception. Without obtaining a waiver of the suspect's Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.\" Muniz, 496 U.S. at 602 n. 14, 110 S.Ct. 2638; see also LaVallee, 521 F.2d at 1113 n. 2 (\"We recognize that this exception to Miranda lends itself to the possibility of abuse by police who might, under the guise seeking pedigree data, elicit an incriminatory statement.\"). To determine whether the police abused the gathering of pedigree information in a manner that compels Miranda protection requires an objective inquiry: Should the police have known that asking the pedigree questions would elicit incriminating information? See Innis, 446 U.S. at 302, 100 S.Ct. 1682 (\"[T]he definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.\" (emphasis in original)); cf. United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir.1983) (\"The test is objective. The subjective intent of the agent is relevant but not conclusive.\"). The pedigree question here was not: \"When did you dye your hair?\" Rather, the question-\"What is your real hair color?\"-was" }, { "docid": "23314641", "title": "", "text": "exceptions to Miranda's seemingly absolute rule. The interchange between Detective Rickey and Edwards concerning whether Edwards had a gun falls within the public safety exception to Miranda established in New York v. Quarles, 467 U.S. 649, 655-57, 104 S.Ct. 2626, 2631-32, 81 L.Ed.2d 550 (1984) (defendant’s statement concerning gun’s location would not be suppressed merely because police officer asked where gun was before giving Miranda warnings to defendant). See also United States v. Brady, 819 F.2d 884 (9th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1032, 98 L.Ed.2d 996 (1988) (questioning defendant about whether he had a gun in his car covered by Quarles public-safety exception to Miranda). As the magistrate noted, drug dealers are known to arm themselves, particularly when making a sale, in order to protect themselves, their goods and the large quantities of cash often associated with such transactions. It was therefore appropriate for Detective Rickey to determine whether Edwards had a weapon that might pose a threat to him, Detective Pharo and innocent persons in the area. The detectives’ questions concerning Edwards’s identity, residence and place of employment are somewhat more problematic. The magistrate found that these questions were not a violation of Miranda, on the basis that the information would eventually have to be given during the booking process. He cited Rhode Island v. Innis, 446 U.S. 291, 302, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980), for the proposition that not all police questioning counts as interrogation, and United States v. Kane, 726 F.2d 344, 349 (7th Cir.1984), for the proposition that “a Miranda interrogation violation does not occur when arresting officers question a defendant only to a limited extent for data required as part of the processing normally attendant to arrest and custody.” Innis and Kane do not directly address the question at issue however. The defendant in Innis had been given his Miranda warnings upon being arrested for armed robbery. The defendant stated that he wished to speak with a lawyer and the police proceeded to the station without directly questioning the defendant further. The officers did, however, discuss among themselves" }, { "docid": "22740895", "title": "", "text": "Perkins, ante, at 296. However, “[a]ny knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining” what the police reasonably should have known. Innis, supra, at 302, n. 8. Thus, custodial interrogation for purposes of Miranda includes both express questioning and words or actions that, given the officer’s knowledge of any special susceptibilities of the suspect, the officer knows or reasonably should know are likely to “have . . . the force of a question on the accused,” Harryman v. Estelle, 616 F. 2d 870, 874 (CA5 1980), and therefore be reasonably likely to elicit an incriminating response. We disagree with the Commonwealth’s contention that Officer Hosterman’s first seven questions regarding Muniz’s name, address, height, weight, eye color, date of birth, and current age do not qualify as custodial interrogation as we defined the term in Innis, supra, merely because the questions were not intended to elicit information for investigatory purposes. As explained above, the Innis test focuses primarily upon “the perspective of the suspect.” Perkins, ante, at 296. We agree with amicus United States, however, that Muniz’s answers to these first seven questions are nonetheless admissible because the questions fall within a “routine booking question” exception which exempts from Miranda’s coverage questions to secure the “‘biographical data necessary to complete booking or pretrial services.’” Brief for United States as Amicus Curiae 12, quoting United States v. Horton, 873 F. 2d 180, 181, n. 2 (CA8 1989). The state court found that the first seven questions were “requested for record-keeping purposes only,” App. B16, and therefore the questions appear reasonably related to the police’s adminis trative concerns. In this context, therefore, the first seven questions asked at the booking center fall outside the protections of Miranda and the answers thereto need not be suppressed. IV During the second phase of the videotaped proceedings, Officer Hosterman asked Muniz to perform the same three sobriety tests that he had earlier performed at roadside prior to his arrest: the “horizontal gaze nystagmus” test, the “walk and turn”" }, { "docid": "16191902", "title": "", "text": "Rather, the dispute focuses on whether the challenged statement was in response to “interrogation” by NYPD Officers. “[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rosa v. McCray, 396 F.3d 210, 220-21 (2d Cir.2005) (some internal quotation marks omitted). An “incriminating response” refers to “any response — whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial.” Rhode Island v. Innis. See 446 U.S. 291, 301 n. 5, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Accordingly, “ ‘[w]here statements are spontaneous — that is, where they are not the result of questioning or its functional equivalent — Miranda warnings are not necessary and the statements are not protected.’ ” United States v. Jacobson, 4 F.Supp.3d 515, 532 (E.D.N.Y.2014) (quoting United States v. Noble, No. 07 CR. 284 (RJS), 2008 WL 1990707, at *7 (S.D.N.Y. May 7, 2008)); see also Innis, 446 U.S. at 300, 100 S.Ct. 1682 (“ “Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.’ ”) (quoting Miranda, 384 U.S. at 478, 86 S.Ct. 1602). In addition, the “ ‘routine booking question exception ... exempts from Miranda’s coverage questions to secure the biographical data necessary to complete booking or pretrial services’ and that per missible questions include those that ‘appear reasonably related to the police’s administrative concerns.’ ” Rosa, 396 F.3d at 221 (quoting Pennsylvania v. Muniz, 496 U.S. 582, 601-02, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (alterations in original)). The test for whether the questioning constitutes “interrogation” is objective, but the officer’s subjective intent in asking the question is relevant to the inquiry. See id. (“The test [for interrogation] is objective. The subjective intent of the agent is relevant but not conclusive.”) (parenthetically quoting United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir.1983)); see also United States" }, { "docid": "2354107", "title": "", "text": "States. Upon being informed by officials at the BCDC on May 17, 1991 that Sotelo was about to post bond, Agent Godshall proceeded to the BCDC to take Sotelo into federal custody. At the BCDC, Agent Godshall encountered Sotelo in the booking area where Sotelo was attempting to recover his belongings in preparation for his release. Hoping to get Sotelo to admit his real name, Agent Godshall asked Sotelo, “How is it going, Jose?” After Sotelo responded affirmatively to that name, Agent Godshall said, “So that’s your name, Jose. It’s not Ricardo Duarte?” Sotelo admitted that Duarte was not his name. Agent Godshall testified that he engaged Sotelo in this conversation to get him to admit his true name. He further testified that information related to Sotelo’s identity would help him determine whether Sotelo was in the country illegally. Sotelo contends thát this questioning at the BCDC was in violation of his Miranda rights. We agree. It is well established that a suspect may not be subjected to custodial interrogation in the absence of an attorney once that suspect has chosen to exercise her Miranda rights. See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981); United States v. Giles, 967 F.2d 382, 385 (10th Cir.1992). Unless the suspect knowingly and intentionally waives those rights, the police must refrain from questioning the suspect outside the presence of her lawyer. Edwards, 451 U.S. at 482, 484-85, 101 S.Ct. at 1884-85; Giles, 967 F.2d at 385. The government concedes that Agent Godshall subjected Sotelo to custodial questioning, but contends that the encounter falls within the exception for “routine booking questions.” In Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), a plurality of the Court recognized the exception “which exempts from Miranda’s coverage questions to secure the ‘biographical data necessary to complete booking or pretrial services.’ ” Id. at 601-02, 110 S.Ct. at 2650-51 (quoting United States v. Horton, 873 F.2d 180, 181 n. 2 (8th Cir.1989)) (plurality of four justices). The government argues that the questions regarding Sotelo’s name fall squarely" }, { "docid": "10264683", "title": "", "text": "(1984). It served to clarify the Court’s conception that Miranda applied after a “person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612 (footnote omitted). . In Keohane, the Court made clear that the ultimate determination of custody is a mixed question of fact and law. The initial examination of the “totality of the circumstances” is factual. The second inquiry, however — whether, objectively, these circumstances constitute the requisite “restraint on freedom of movement of the degree associated with a formal arrest” — requires the “application of the controlling legal standard to the historical facts.” - U.S. at - & n. 11, 116 S.Ct. at 465 & n. 11. . This is not an exhaustive list. Other courts have identified other factors significant to a custody determination. See Sprosty v. Buchler, 79 F.3d 635, 641 (7th Cir.1996) (citing cases). . However, an officer's knowledge \" 'concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining' what the [officer] reasonably should have known.” Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 2650, 110 L.Ed.2d 528 (1990) (quoting Innis, 446 U.S. at 302 n. 8, 100 S.Ct. at 1690 n. 8). . We note that not all questioning of in-custody suspects constitutes interrogation triggering the Miranda protections. For example, many courts recognize a “routine booking interrogation” exception to the Miranda rule. See United States v. Doe, 878 F.2d 1546, 1551 (1st Cir.1989) (citing cases). Requesting biographical information— name, address, etc. — rarely elicits an incriminating response and serves a legitimate administrative need. Id. If, however, the officer seeks to elicit information that may incriminate, the exception does not apply. Id. We express no opinion on whether this narrow Miranda exception applies in the Customs setting." }, { "docid": "2354108", "title": "", "text": "attorney once that suspect has chosen to exercise her Miranda rights. See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981); United States v. Giles, 967 F.2d 382, 385 (10th Cir.1992). Unless the suspect knowingly and intentionally waives those rights, the police must refrain from questioning the suspect outside the presence of her lawyer. Edwards, 451 U.S. at 482, 484-85, 101 S.Ct. at 1884-85; Giles, 967 F.2d at 385. The government concedes that Agent Godshall subjected Sotelo to custodial questioning, but contends that the encounter falls within the exception for “routine booking questions.” In Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), a plurality of the Court recognized the exception “which exempts from Miranda’s coverage questions to secure the ‘biographical data necessary to complete booking or pretrial services.’ ” Id. at 601-02, 110 S.Ct. at 2650-51 (quoting United States v. Horton, 873 F.2d 180, 181 n. 2 (8th Cir.1989)) (plurality of four justices). The government argues that the questions regarding Sotelo’s name fall squarely within this exception. We disagree. The underlying rationale for the exception is that routine booking questions do not constitute interrogation because they do not normally elicit incriminating responses. See United States v. Clark, 982 F.2d 965, 968 (6th Cir.1993); United States v. Monzon, 869 F.2d 338, 342 (7th Cir.), cert. denied, 490 U.S. 1075, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1989). As the Muniz plurality itself recognized, “the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.” 496 U.S. at 602 n. 14, 110 S.Ct. at 2650 (internal quotations omitted). Thus, where questions regarding normally routine biographical information are designed to elicit incriminating information, the questioning constitutes interrogation subject to the strictures of Miranda. See United States v. Henley, 984 F.2d 1040, 1042 (9th Cir.1993). In this ease, Agent Godshall did not question Sotelo to obtain general booking information. Rather, he questioned Sotelo about his true name for the direct and admitted purpose of linking Sotelo to his incriminating immigration file. Under these circumstances, the questioning was reasonably likely" }, { "docid": "20196239", "title": "", "text": "friend, Patrick Wilson, who would give it to investigating police officers the following day, November 2. On the morning of November 3, police arrested Acosta for Cetter’s murder. At a station house lineup conducted the same day, Higgs, Perry, and Martinez each positively identified Acosta as the person they had implicated in the murder. Later that day, Acosta himself admitted to a police detective that he had stabbed Cetter but explained that his actions were taken in self-defense. B. State Court Proceedings 1. The Suppression Hearing Acosta was. charged by a Kings County grand jury with two counts of Murder in the Second Degree, see N.Y. Penal Law § I25.25[l], [3]; one count of Robbery in the First Degree, see id. § 160.15[3]; and one count of Criminal Possession of a Weapon in the Fourth Degree, see id. § 265.01[2]. Prior to trial, Acosta moved, inter alia, to suppress his post-arrest admission, alleging that it was the fruit of an unlawful arrest and had been obtained in violation of his right to counsel. Acosta did not present any evidence or submit an affidavit in support of his motion; nor did he testify at the hearing held to address the motion. At that hearing, Police Detectives Nancy Gaffney and Ramon Aguilar testified to how they came to identify Acosta as Cetter’s likely killer and to place Acosta under arrest. Detective Aguilar further stated that, after arrest, Acosta was advised of his Miranda rights when he was brought to the police precinct at approximately 5:30 p.m. Because Acosta invoked his right to counsel, police questioning was limited to securing pedigree information. See generally Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (recognizing “routine booking question exception which exempts from Miranda’s coverage questions to secure the biographical data necessary to complete booking or pretrial services” (internal quotation marks omitted)). Detective Aguilar testified that between 6:00 p.m. and 7:00 p.m. the police placed Acosta in a lineup that was viewed separately by Perry, Higgs, and Martinez, each of whom positively identified Acosta. Approximately two hours later, when the" }, { "docid": "20882205", "title": "", "text": "other than in response to the routine booking questions were voluntary. As a general rule, when a defendant is in custody, law officials must give him appropriate Miranda warnings before interrogation begins; otherwise, any statements resulting from the police interrogation will be inadmissible unless the defendant clearly and intelligently waived his rights. Miranda, 384 U.S. 436, 86 S.Ct. 1602. Interrogation is defined as “questioning initi ated by law enforcement officials.” Id. at 444, 86 S.Ct. at 1612. This definition has been extended to the “functional equivalent” of express questioning and includes, “any words or actions on the part of police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). Custodial interrogation includes “words or actions that, given the officer’s knowledge of any special susceptibilities of the suspect, the officer knows or reasonably should know are likely to ‘have ... the force of a question on the accused’ ... and therefore be reasonably likely to elicit an incriminating response.” Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 2650, 110 L.Ed.2d 528 (1990) (citation omitted). “Routine booking questions,” or questions posed to secure the personal history data necessary to complete the booking process, are exempt from Miranda’s coverage. Id. This court has adopted the view that: “Ordinarily, ... the routine gathering of biographical data for booking purposes should not constitute interrogation under Miranda.” United States v. Avery, 717 F.2d 1020, 1025 (6th Cir.1983), cert. denied, 466 U.S. 905, 104 S.Ct. 1683, 80 L.Ed.2d 157 (1984). Thus, absent evidence that a defendant has particular susceptibility to the questioning or that the police used the booking questions to elicit incriminating statements from the defendant, routine biographical questions are not ordinarily considered interrogation. Id. at 1024. Whether the agents “interrogated” Clark is an issue of fact we review for clear error. United States v. Sangineto-Miranda, 859 F.2d 1501, 1512 (6th Cir.1988). Clark agrees that the questions posed by Agent Milhills sought only routine information for the booking form. He" }, { "docid": "22198887", "title": "", "text": "defendant’s arrest and prior to arraignment. Because the underlying purpose of the Sixth Amendment right to counsel is to assure that the criminal defendant is not forced to face “ ‘the prosecu-torial forces of organized society’ ” alone, id. at 430, 106 S.Ct. at 1145 (quoting Maine v. Moulton, 474 U.S. 159, 170, 106 S.Ct. 477, 484, 88 L.Ed.2d 481 (1985)), the right attaches as the process shifts from investigation to prosecution, and not before. The Miranda challenge is more difficult, and presents an issue of first impression in this circuit. The Fifth Amendment provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court established a series of prophylactic rules that apply to all custodial interrogation as a way of combating the inherently coercive effects of such a setting upon a person’s ability to claim this constitutional right. However, before the Miranda rights attach, there must be custodial interrogation. The issue here is whether the INS and ATF questioning constituted interrogation for Miranda purposes. As a general rule, interrogation has been defined for this purpose as express questioning or its functional equivalent, which includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Pennsylvania v. Muniz, 496 U.S. 582, 600-01, 110 S.Ct. 2638, 2649, 110 L.Ed.2d 528 (1990) (plurality opinion) (quoting Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)) (emphasis supplied). As indicated by the emphasized language, there exists an exception to Miranda’s coverage for routine booking questions securing “biographical data necessary to complete booking or pretrial services,” Muniz, 496 U.S. at 601, 110 S.Ct. at 2649 (plurality opinion), although this exception does not apply to questions, even during booking, that are designed to elicit incriminatory admissions. Id. at 602 n. 14, 110 S.Ct. at 2650 n. 14. D’Anjou" }, { "docid": "20882206", "title": "", "text": "reasonably likely to elicit an incriminating response.” Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 2650, 110 L.Ed.2d 528 (1990) (citation omitted). “Routine booking questions,” or questions posed to secure the personal history data necessary to complete the booking process, are exempt from Miranda’s coverage. Id. This court has adopted the view that: “Ordinarily, ... the routine gathering of biographical data for booking purposes should not constitute interrogation under Miranda.” United States v. Avery, 717 F.2d 1020, 1025 (6th Cir.1983), cert. denied, 466 U.S. 905, 104 S.Ct. 1683, 80 L.Ed.2d 157 (1984). Thus, absent evidence that a defendant has particular susceptibility to the questioning or that the police used the booking questions to elicit incriminating statements from the defendant, routine biographical questions are not ordinarily considered interrogation. Id. at 1024. Whether the agents “interrogated” Clark is an issue of fact we review for clear error. United States v. Sangineto-Miranda, 859 F.2d 1501, 1512 (6th Cir.1988). Clark agrees that the questions posed by Agent Milhills sought only routine information for the booking form. He offers no evidence to support his conclusion that Agent Milhills used the questions as “mere pretext” to elicit incriminating information, nor does Clark offer any evidence to establish that he was particularly susceptible to that line of questioning. Moreover, some 15 minutes elapsed between the end of the booking questions and answers, and the incriminating statements Clark claims were inadmissible. Thus, we do not find that the district court clearly erred when it concluded that there was no interrogation. Because Clark was not interrogated, within the meaning of Miranda, during the ride to Grand Rapids, the statements he made that went beyond the scope of Milhills’s “booking questions” were voluntary utterances. “Any statement given freely and voluntarily without any compelling influences is, of course, admissible into evidence.” Miranda, 384 U.S. at 478, 86 S.Ct. at 1629. B. Clark also asserts that the government’s rebuttal argument improperly referred to Clark’s failure to call the special agent who accompanied Clark and Agent Milhills to Grand Rapids. He claims that it constituted prosecutorial misconduct and denied him a" } ]

[ { "docid": "11356798", "title": "", "text": "despite this gap between the relief sought and the relief FOIA affords. 5 U.S.C. § 704. IV. Section 704 reflects Congress’ judgment that “the general grant of review in the APA” ought not “duplicate existing procedures for review of agency action” or “provide additional judicial remedies in situations where Congress has provided special and adequate review procedures.” Bowen v. Massachusetts, 487 U.S. 879, 903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (citation omitted). Courts must, however, avoid lightly “construing] [section 704] to defeat the [APA’s] central purpose of providing a broad spectrum of judicial review of agency action.” Id. When considering whether an alternative remedy is “adequate” and therefore preclusive of APA review, we look for “clear and convincing evidence” of “legislative intent” to create a special, alternative remedy and thereby bar APA review. Garcia v. Vilsack, 563 F.3d 519, 523 (D.C. Cir. 2009) (quoting El Rio Santa Cruz Neighborhood Health Center v. HHS, 396 F.3d 1265, 1270 (D.C. Cir. 2005)). Our cases have identified that intent—or its absence—through several means. For example, where Congress has provided “an independent cause of action or an alternative review procedure” in a purported alternative, we have found clear markers of legislative intent to preclude. El Rio, 396 F.3d at 1270. An alternative that provides for de novo district-court review of the challenged agency action offers further evidence of Congress’ will, given the frequent “incompatibility]” between de novo review and the APA’s deferential standards. Environmental Defense Fund v. Reilly, 909 F.2d 1497, 1506 (D.C. Cir. 1990); El Rio, 396 F.3d at 1270 (“[W]here a statute affords an opportunity for de novo district-court review, the court has held that APA review was precluded because ‘Congress did not intend to permit a litigant challenging an administrative denial ... to utilize simultaneously both [the review provision] and the APA.” (quoting Environmental Defense Fund, 909 F.2d at 1501 (alteration in original))). That said, if the very existence of an alternative remedy is “doubtful,” Bowen, 487 U.S. at 905, 108 S.Ct. 2722, or “uncertain[ ],” El Rio, 396 F.3d at 1274, there is scant basis to displace APA review." } ]

[ { "docid": "19091921", "title": "", "text": "this court has held that the alternative remedy need not provide relief identical to relief under the APA, so long as it offers relief of the “same genre.” El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1272 (D.C.Cir.2005). Thus, for example, relief will be deemed adequate “where a statute affords an opportunity for de novo district-court review” of the agen cy action. Id. at 1270. In such cases, the court has reasoned that “Congress did not intend to permit a litigant challenging an administrative denial ... to utilize simultaneously both [the review provision] and the APA.” Id. at 1270 (quoting Envtl. Defense Fund v. Reilly, 909 F.2d 1497, 1501 (D.C.Cir.1990)) (omission and alteration in original). Relief also will be deemed adequate “where there is a private cause of action against a third party otherwise subject to agency regulation.” Id. at 1271. In evaluating the availability and adequacy of alternative remedies, however, the court must give the APA “ ‘a hospitable interpretation’ such that ‘only upon a showing of clear and convincing evidence of a contrary legislative intent should the courts restrict access to judicial review.’ ” Id. at 1270 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)); see also Bowen v. Massachusetts, 487 U.S. at 904, 108 S.Ct. 2722. Appellants contend that the district court erred in two respects in holding that they could not bring a claim under the APA challenging the USDA’s failure to investigate their civil rights complaints: First, the district court misapplied Bowen by disregarding record evidence that under Section 741 there was no real adequate alternative remedy in a court for their failure-to-investigate claims; second, the district court mistakenly relied on this court’s precedents involving claims against an agency for failing to regulate third-party wrongdoers, and therefore failed to follow circuit ■ precedent that permits a plaintiff to bring an APA claim for the agency’s failure to follow its regulations in addition to a non-APA discrimination claim. Appellants emphasize that their survival as farmers depends in significant" }, { "docid": "10615741", "title": "", "text": "to govern the Board’s decision not to convene an SSB were enacted over five years after the Dickson Court concluded that such review under the APA was available since the APA “provides a default standard of judicial review ... where a statute does not otherwise provide a standard.” Dickson, 68 F.3d at 1404 n. 12. The defendant farther contends that subject matter jurisdiction is lacking because “the scope of judicial review provided by 10 U.S.C. § 628(g) is limited to required Secretarial determinations that criteria specified by 10 U.S.C. § 621(b)(1) have been met.” Def.’s Reply at 10. As discussed below, although the defendant is correct that § 628 provides the exclusive basis for judicial review of the plaintiffs’ claims, precluding APA review, the defendant’s proffered restrictive construction of this section as removing judicial review of waiver determinations is unpersuasive. 1. APA Review Is Unavailable It is axiomatic that the APA provides only a “generic cause of action in favor of persons aggrieved by agency action,” Md. Dep’t of Human Res. v. Dep’t of Health & Human Servs., 763 F.2d 1441, 1445 n. 1 (D.C.Cir.1985), when the plaintiff has “no other adequate remedy in a court” to challenge a final agency action, 5 U.S.C. § 704, and the agency action is not “committed to agency discretion by law,” Oryszak v. Sullivan, 576 F.3d 522, 525 (D.C.Cir.2009). See also Bowen v. Massachusetts, 487 U.S. 879, 903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (stating that the APA “does not provide additional judicial remedies in situations where the Congress has provided special and adequate review procedures.”); Mittleman v. Postal Regulatory Comm’n, 757 F.3d 300, 304 (D.C.Cir.2014) (noting that “Chapter 7 of title 5 of the United States Code, titled ‘Judicial Review,’ is the part of the APA that provides a cause of action for judicial review” and “entitles a person aggrieved by agency action to ‘judicial review thereof,’ 5 U.S.C. § 702, and provides that ‘final agency action for which there is no other adequate remedy in a court [is] subject to judicial review,’ id. § 704”). Relying on this principle, the" }, { "docid": "8041366", "title": "", "text": "the APA: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action with the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. 5 U.S.C. § 702 (emphasis added). The right of review is further subject to § 704, which provides in part: Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. 5 U.S.C. § 704 (emphasis added). In Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), the Supreme Court interpreted the above emphasized portions of these statutes to allow district court review of a denial of federal Medicaid funds to the Commonwealth of Massachusetts. Addressing the requirement that the relief sought be “other than money damages,” the Court emphasized “the distinction between an action at law for damages—which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation—and an equitable action for specific relief—which may include an order providing for the reinstatement of an employee with back pay, or for ‘the recovery of specific property or monies, ejectment from land, or injunction either directing or restraining the defendant officer’s actions.’ ” Id., 108 S.Ct. at 2731-32 (quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688, 69 S.Ct. 1457, 1460, 93 L.Ed. 1628 (1949)) (emphasis added by Bowen Court). Adhering to this distinction, the Court found that plaintiff’s suit was not one “seeking money in compensation for the damage sustained by the failure of the Federal Government to pay as mandated; rather, it [was] a suit seeking to" }, { "docid": "23470961", "title": "", "text": "... without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). The second form of relief is made available by Section 706(1) of the APA, which requires a reviewing court to “compel agency action unlawfully withheld.” Id. § 706(1). Sharkey asserts that jurisdiction vests under the Federal Question Statute, 28 U.S.C. § 1331, because her claim “arises under” the APA. Compl. ¶ 2. Under the APA, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” Darby v. Cisneros, 509 U.S. 137, 146, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993) (quoting 5 U.S.C. § 702). “[TJhe ‘right of action’ in such cases is expressly created by the [APA], which states that ‘final agency action for which there is no other adequate remedy in a court [is] subject to judicial review,’ at the behest of ‘[a] person ... adversely affected or aggrieved by agency action.’ ” Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 229 n. 4, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986) (quoting 5 U.S.C. §§ 702, 704). Although the APA does not itself confer subject matter jurisdiction, see Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), the Federal Question Statute, 28 U.S.C. § 1331, confers jurisdiction over a suit that “arises under” a “right of action” created by the APA, see Bowen v. Massachusetts, 487 U.S. 879, 891 n. 16, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (“[I]t is common ground that if review is proper under the APA, the District Court ha[s] jurisdiction under 28 USC § 1331.”). Because Section 1331 confers jurisdiction on the district courts, a suit that arises under the APA is properly brought in district court. I.A Statutory Preclusion of Judicial Review In determining whether a suit can be brought under the APA, “[w]e begin with the strong presumption that Congress intends judicial review of administrative action.” Bowen v. Mich. Academy of Family Physicians, 476 U.S. 667, 670, 106 5.Ct. 2133, 90 L.Ed.2d 623" }, { "docid": "13303769", "title": "", "text": "challenge to a pre-enforcement assessment because the case is not ripe for review under the APA. Section 704 of the APA provides that only “[ajgency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court, are subject to review.” 5 U.S.C. § 704; see also Bowen v. Massachusetts, 487 U.S. 879, 901-903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988); Tucson Airport, 136 F.3d 641, 645 (9th Cir.1998). NMB can point to no statute which provides for review of an importer initiated challenge to a pre-enforcement penalty assessment. Thus, the agency action complained of here is only reviewable under the APA if it constitutes “final agency action,” for which there is no other adequate remedy in a court. In order for an agency action to be deemed final at least two conditions must exist. “First, the action must mark the consummation of the agency’s decision-making process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences flow.” Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 1168, 137 L.Ed.2d 281 (1997) (internal citations and quotation marks deleted). Although NMB is correct in asserting that the first requirement is met here, we find that the second requirement is not met and therefore review is not provided under the APA. Customs’ assessment of penalties pursuant to 19 U.S.C. § 1592 does not constitute a final agency action because it does not determine the rights or obligations of an importer, nor are there legal consequences flowing from the administrative determination that a penalty is owed. During the administrative review stages of a penalty assessment action, an importer is under no obligation to pay an assessed penalty. Such an obligation only arises after the CIT conducts a de novo review of all issues in a government initiated enforcement proceeding and determines whether a penalty is due and the amount of any such penalty. See 19 U.S.C. § 1592(e) (providing for de novo review by the" }, { "docid": "12052459", "title": "", "text": "Id. The “discretionary function exception is thus a form of retained sovereign immunity.” In re World Trade Ctr. Disaster Site Litig., 521 F.3d 169, 190 (2d Cir.2008). It “ ‘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.’ ” Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954 (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)). It is intended to “assure protection for the Government against tort liability for errors in administration or in the exercise of discretionary functions.” Dalehite v. United States, 346 U.S. 15, 26-27, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) (citation omitted). In this case, plaintiff alleges a claim under the FTCA for FEMA’s purported wrongful denial of nondiscretionary funding of the Parish’s requested debris removal. Plaintiff also brings a claim pursuant to the APA for improper rulemaking under the Stafford Act. The APA is a broadly applicable statute that “undoubtedly evinces Congress’ intention and understanding that judicial review should be widely available to challenge the actions of federal administrative officials.” Califano v. Sanders, 430 U.S. 99, 104, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Section 702 of the APA authorizes suits against the United States through a limited waiver of sovereign immunity for “relief other than money damages” related to an agency’s regulatory action. See 5 U.S.C. § 702. The APA, moreover, permits judicial review of claims for specific relief that result in the payment of money' — such as a claim seeking a declaratory judgment ordering that an agency comply with a mandatory funding requirement — because such actions are not for “money damages,” in the form of compensation for a loss that the plaintiff has suffered or will suffer but for specific relief related to agency action. See Bowen v. Massachusetts, 487 U.S. 879, 893, 901, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988). However, the waiver does not apply “to the extent that — (1) statutes preclude judicial" }, { "docid": "19091919", "title": "", "text": "the record. Subsections (d) and (g) provided that complainants denied administrative relief could seek de novo review in federal court. Appellants, nearly all of whom appear to have filed complaints with the USDA before July 1, 1997, chose the first option: On the eve of the October 21, 2000 deadline, they filed complaints in the federal district court here under the ECOA and the Declaratory Judgment Act, 28 U.S.C. § 2201(a). Their complaints also included claims under the APA. They alleged that the USDA had discriminated against them with respect to credit transactions and disaster benefits in violation of the ECOA, and also had systemically failed to investigate complaints of such discrimination in violation of USDA regulations. In the district court only appellants’ ECOA credit transaction claims and the Garcia appellants’ APA disaster benefit claims have survived the USDA’s motion to dismiss. The district court also denied appellants’ motions for class certification on their remaining ECOA discrimination claims, and this court affirmed upon interlocutory review in 2006. See Love, 439 F.3d 723; Garcia, 444 F.3d 625. Following a remand of the APA failure-to-investigate claims, the district court reaffirmed its dismissal of those claims on the ground that Section 741 provided appellants an adequate remedy at law. See Love v. Connor, 525 F.Supp.2d 155; Order, Garcia v. Veneman, Civ. No. 00-2445. The district court certified its interlocutory ruling, and this court granted appellants’ petition for leave to appeal pursuant to 28 U.S.C. § 1292(b). II. The APA provides that “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. In Bowen v. Massachusetts, 487 U.S. 879, 904, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), the Supreme Court interpreted § 704 as precluding APA review where Congress has otherwise provided a “special and adequate review procedure.” Id. at 904, 108 S.Ct. 2722 (internal quotations omitted). An alternative remedy will not be adequate under § 704 if the remedy offers only “doubtful and limited relief.” Id. at 901, 108 S.Ct. 2722. So understood," }, { "docid": "1864137", "title": "", "text": "plaintiffs’ claims to a tax refund action would force plaintiffs to make a choice between purchasing insurance, thereby waiving their claims, or foregoing insurance and incurring the tax penalty, which they will recover much later, and only if they prevail. They also will be deprived of the opportunity to obtain prospective certificates of exemption. See 45 C.F.R. § 155.605(g)(2). Such certificates provide a safe harbor to an individual who can establish that he or she likely will meet the requirements of the unaffordability exemption for that tax year; such certificates guarantee that individuals will avoid the tax penalty “notwithstanding any change in an individual’s circumstances,” such as an unexpected increase in income. 45 C.F.R. § 155.605(g)(2)(vi). Defendants argue that the tax refund suit is adequate because it is a de novo proceeding. See Democratic Leadership Council v. United States, 542 F.Supp.2d 63, 70 (D.D.C.2008) (tax refund actions are de novo proceedings). When that proceeding occurs is irrelevant, according to defendants. As the D.C. Circuit explained in Garcia, “relief will be deemed adequate ‘where a statute affords an opportunity for de novo district-court review,’ ” as “Congress did not intend to permit a litigant challenging an administrative denial ... to utilize simultaneously both [the review provision] and the APA.” Garcia v. Vilsack, 563 F.3d at 522-23 (alterations in original) (quoting El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d at 1270). But Garcia is distinguishable from the present case in a number of significant ways. In Garcia, there was no substantive difference between the relief available in the special judicial proceeding and that available in an APA action, and plaintiffs were in fact attempting to pursue both avenues of relief at the same time. See Garcia v. Vilsack, 563 F.3d at 521, 523 (noting that plaintiffs brought claims under Equal Credit Opportunity Act and the APA in the same lawsuit). By contrast, here prospective relief — including the ability to qualify for a certificate of exemp.tion — is available only in the APA action brought by plaintiffs; such relief is not available in" }, { "docid": "19091920", "title": "", "text": "625. Following a remand of the APA failure-to-investigate claims, the district court reaffirmed its dismissal of those claims on the ground that Section 741 provided appellants an adequate remedy at law. See Love v. Connor, 525 F.Supp.2d 155; Order, Garcia v. Veneman, Civ. No. 00-2445. The district court certified its interlocutory ruling, and this court granted appellants’ petition for leave to appeal pursuant to 28 U.S.C. § 1292(b). II. The APA provides that “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. In Bowen v. Massachusetts, 487 U.S. 879, 904, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), the Supreme Court interpreted § 704 as precluding APA review where Congress has otherwise provided a “special and adequate review procedure.” Id. at 904, 108 S.Ct. 2722 (internal quotations omitted). An alternative remedy will not be adequate under § 704 if the remedy offers only “doubtful and limited relief.” Id. at 901, 108 S.Ct. 2722. So understood, this court has held that the alternative remedy need not provide relief identical to relief under the APA, so long as it offers relief of the “same genre.” El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1272 (D.C.Cir.2005). Thus, for example, relief will be deemed adequate “where a statute affords an opportunity for de novo district-court review” of the agen cy action. Id. at 1270. In such cases, the court has reasoned that “Congress did not intend to permit a litigant challenging an administrative denial ... to utilize simultaneously both [the review provision] and the APA.” Id. at 1270 (quoting Envtl. Defense Fund v. Reilly, 909 F.2d 1497, 1501 (D.C.Cir.1990)) (omission and alteration in original). Relief also will be deemed adequate “where there is a private cause of action against a third party otherwise subject to agency regulation.” Id. at 1271. In evaluating the availability and adequacy of alternative remedies, however, the court must give the APA “ ‘a hospitable interpretation’ such that ‘only upon" }, { "docid": "11356797", "title": "", "text": "L.Ed.2d 252 (1996). And given that the parties in Kennecott raised the very textual argument advanced by Public Citizen, we are hardly free to avoid the otherwise binding nature of our precedent on the grounds that the question was one that “merely lurkfed] in the record, neither brought to the attention of the court nor ruled upon,” LaShawn A. v. Barry, 87 F.3d 1389, 1395 n.7 (D.C. Cir. 1996) (en banc); see Joint Reply Br. Ken-necott Utah Copper Corp. and Industry and Sanitation District Petitioners at 13, Kennecott, 88 F.3d 1191 (No. 93-1700). To sum up, then, CREW may, in a FOIA suit to enforce section 552(a)(2), seek an injunction that would (1) apply prospectively, and would (2) impose an affirmative obligation to disclose upon OLC, but that would (3) require disclosure of documents and indices only to CREW, not disclosure to the public. Having concluded that FOIA makes available all the relief sought by CREW except disclosure to the public, we now consider whether FOIA constitutes an “adequate remedy” preclu-sive of CREW’s APA claim despite this gap between the relief sought and the relief FOIA affords. 5 U.S.C. § 704. IV. Section 704 reflects Congress’ judgment that “the general grant of review in the APA” ought not “duplicate existing procedures for review of agency action” or “provide additional judicial remedies in situations where Congress has provided special and adequate review procedures.” Bowen v. Massachusetts, 487 U.S. 879, 903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (citation omitted). Courts must, however, avoid lightly “construing] [section 704] to defeat the [APA’s] central purpose of providing a broad spectrum of judicial review of agency action.” Id. When considering whether an alternative remedy is “adequate” and therefore preclusive of APA review, we look for “clear and convincing evidence” of “legislative intent” to create a special, alternative remedy and thereby bar APA review. Garcia v. Vilsack, 563 F.3d 519, 523 (D.C. Cir. 2009) (quoting El Rio Santa Cruz Neighborhood Health Center v. HHS, 396 F.3d 1265, 1270 (D.C. Cir. 2005)). Our cases have identified that intent—or its absence—through several means. For example, where Congress" }, { "docid": "1864134", "title": "", "text": "(footnotes omitted). The APA thus \"does not provide additional judicial remedies in situations where the CongTess has provided special and adequate review procedures.” Bowen v. Massachusetts, 487 U.S. at 903, 108 S.Ct. 2722 (quoting Attorney General’s Manual on the Administrative Procedure Act 101 (1947)). Instead, where Congress already has created a separate cause of action for review of agency action, “[t]he form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court' specified by statute” unless, that proceeding is “inadequate].” 5 U.S.C. § 703. Although Section 704 disallows APA review of agency actions when other, adequate remedies are provided by statute, the Supreme Court has noted that this provision “should not be construed to defeat the central purpose of providing a broad spectrum of judicial review of agency action.” Bowen v. Massachusetts, 487 U.S. at 903, 108 S.Ct. 2722. Therefore, when determining whether alternative remedies are adequate, “the court must give the APA ‘a hospitable interpretation’ such that ‘only upon a showing of clear and convincing evidence of a contrary legislative intent should the courts restrict access to judicial review.’ ” Garcia v. Vilsack, 563 F.3d 519, 523 (D.C.Cir.2009) (quoting El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1272 (D.C.Cir.2005) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967))). Defendants assert that a special, time-honored statutory procedure exists for challenges to IRS actions: the tax refund suit. 28 U.S.C. § 1346 provides that a district court has original jurisdiction of “[a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been errone ously or illegally assessed or collected, or any penalty claimed to have been collected without authority[.]” 28 U.S.C. § 1346(a)(1). Under the Internal Revenue Code, however, no such suit may be brought until after the challenged tax has been paid and “a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the" }, { "docid": "8041365", "title": "", "text": "the court finds appropriate. II. Defendant’s Motion for Dismissal Defendants contend that the United States Claims Court has exclusive jurisdic tion over this dispute and, accordingly, move for dismissal on the ground of lack of subject matter jurisdiction. A. Reviewability Under the Administrative Procedures Act (“APA”) The APA does not provide an implied grant of subject matter jurisdiction to the district courts. See Califano v. Sanders, 430 U.S. 99, 105-07, 97 S.Ct. 980, 984-85, 51 L.Ed.2d 192 (1977); Eagle-Picher Indus., Inc. v. United States, 901 F.2d 1530, 1532 (10th Cir.1990). Rather, if review of an administrative action is appropriate under the APA, the district court’s subject matter jurisdiction is derived from some other statute, such as the federal question jurisdiction statute, 28 U.S.C. § 1331. Adamson v. Radosevic, 685 F.Supp. 814, 817 (D.Kan.1988). The initial question is whether the Secretary’s denial of deficiency payments constitutes reviewable agency action under the APA. The right of a party to challenge an administrative action in the federal district courts is governed by the terms of §§ 702-03 of the APA: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action with the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. 5 U.S.C. § 702 (emphasis added). The right of review is further subject to § 704, which provides in part: Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. 5 U.S.C. § 704 (emphasis added). In Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), the Supreme Court interpreted the above emphasized" }, { "docid": "15340323", "title": "", "text": "review provisions” a “hospitable interpretation,” such that “only upon a showing of clear and convincing evidence of a contrary legislative intent should the courts restrict access to judicial review.” Id. at 141, 87 S.Ct. 1507 (internal quotation marks omitted); see Garcia v. Vilsack, 563 F.3d 519, 523 (D.C.Cir.2009). Under this standard, “[a]n alternative remedy will not be adequate ... if the remedy offers only ‘doubtful and limited relief ” Garcia, 563 F.3d at 522 (quoting Bowen v. Massachusetts, 487 U.S. 879, 901, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988)). Although “the alternative remedy need not provide relief identical to relief under the APA,” it must “offer[] relief of the ‘same genre.’ ” Id. at 522 (quoting El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1272 (D.C.Cir.2005)). In arguing that a tax refund suit provides an adequate alternative remedy, the government emphasizes Klemencic’s ability to recover any assessed overpayment, plus interest. But that backward-looking relief differs in kind from the prospective relief Klemencic could obtain under the APA. See Bowen, 487 U.S. at 904-05, 108 S.Ct. 2722 (rejecting as “unprecedented” the government’s argument that a suit for monetary damages is an adequate alternative to prospective relief under the APA). Specifically, requiring Klemencic to proceed via refund suit would deprive him of the opportunity to obtain a “certificate of exemption.” See 45 C.F.R. § 155.605(g)(2). Such certificates are a form of safe harbor, allowing an individual to obtain an exemption from the mandate’s penalty on the basis of projected income, “notwithstanding any [subsequent] change in an individual’s circumstances.” Id. § 155.605(g)(2)(vi). Unlike the “prospeetive[]” assurance such certificates offer, id., a refund suit would require Klemencic to violate the law as it now stands, pay a penalty, and only then challenge the assessment of the penalty for that previous year based on his actual income. And even if Klemencic were to prevail, his relief — financial restitution — would be backwards looking, meaning that Klemencic would have to repeat the cycle the following year. The government offers no sug- gestión that he could" }, { "docid": "15340322", "title": "", "text": "challenge the rule. We therefore proceed to consider whether Klemen-cic may mount his challenge under the APA. B The APA provides a cause of action to challenge final agency action “for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. The government argues that even if Klemencic has standing to challenge the IRS Rule, he cannot do so under the APA because he has an adequate alternative remedy in the form of a tax-refund suit: Klemencic could violate the individual mandate, pay the penalty, and then sue for a refund, raising the same arguments he makes here. See 28 U.S.C. § 1346(a)(1); see also 26 U.S.C. § 7422(a). Such a remedy is adequate, the government contends, because if Klemencic were successful, the suit would make him financially whole. The APA “embodies the basic presumption of judicial review” of agency action. Abbott Labs. v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). Therefore, in determining whether an alternative remedy is adequate, we must give the APA’s “generous review provisions” a “hospitable interpretation,” such that “only upon a showing of clear and convincing evidence of a contrary legislative intent should the courts restrict access to judicial review.” Id. at 141, 87 S.Ct. 1507 (internal quotation marks omitted); see Garcia v. Vilsack, 563 F.3d 519, 523 (D.C.Cir.2009). Under this standard, “[a]n alternative remedy will not be adequate ... if the remedy offers only ‘doubtful and limited relief ” Garcia, 563 F.3d at 522 (quoting Bowen v. Massachusetts, 487 U.S. 879, 901, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988)). Although “the alternative remedy need not provide relief identical to relief under the APA,” it must “offer[] relief of the ‘same genre.’ ” Id. at 522 (quoting El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1272 (D.C.Cir.2005)). In arguing that a tax refund suit provides an adequate alternative remedy, the government emphasizes Klemencic’s ability to recover any assessed overpayment, plus interest. But that backward-looking relief differs in kind from the prospective relief Klemencic could obtain under" }, { "docid": "1864132", "title": "", "text": "in a position where he has to purchase subsidized health insurance, estimated at approximately $20 per year, see Third Moulds Deck ¶ 6, or he will have to pay some higher amount per year as a Section 5000A tax penalty. Counterintuitively, by making health insurance more affordable, the IRS Rule imposes a financial cost on Klemencic. Although the economic injury is rather small, defendants cite no authority that suggests that the amount at issue&emdash;only about $1.70 per month, or $20 per year&emdash;is too small to establish injury-in-fact for jurisdictional purposes. Mr. Klemencic’s economic injury, albeit a non-intuitive one, meets the requirements for Article III standing. It is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Clapper v. Amnesty Int’l USA, - U.S.-, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (internal quotation omitted). 2. The Administrative Procedure Act and the Tax Refund Alternative As noted, plaintiffs bring suit under the Administrative Procedure Act, which provides a “generic cause of action in favor of persons aggrieved by agency action.” Cohen v. United States, 650 F.3d 717, 723 (D.C.Cir.2011) (en banc) (quoting Maryland Dep’t of Human Res. v. Dep’t of Health & Human Servs., 763 F.2d 1441, 1445 n.l (D.C.Cir.1985)). The APA permits judicial review of any “[ajgency action made reviewable by statute,” as well as any “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704 (emphasis added). Section 704 thus excludes from APA review those agency actions for which there are alternative judicial remedies in place. As the Supreme Court has explained: At the time the APA was enacted, a number of statutes creating administrative agencies defined the specific procedures to be followed in reviewing a particular agency’s action.... When Congress enacted the APA to provide a general authorization for review of agency action in the district courts, it did not intend that general grant of jurisdiction to duplicate the previously established special statutory procedures relating to specific agencies. Bowen v. Massachusetts, 487 U.S. 879, 903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988)" }, { "docid": "1864138", "title": "", "text": "affords an opportunity for de novo district-court review,’ ” as “Congress did not intend to permit a litigant challenging an administrative denial ... to utilize simultaneously both [the review provision] and the APA.” Garcia v. Vilsack, 563 F.3d at 522-23 (alterations in original) (quoting El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d at 1270). But Garcia is distinguishable from the present case in a number of significant ways. In Garcia, there was no substantive difference between the relief available in the special judicial proceeding and that available in an APA action, and plaintiffs were in fact attempting to pursue both avenues of relief at the same time. See Garcia v. Vilsack, 563 F.3d at 521, 523 (noting that plaintiffs brought claims under Equal Credit Opportunity Act and the APA in the same lawsuit). By contrast, here prospective relief — including the ability to qualify for a certificate of exemp.tion — is available only in the APA action brought by plaintiffs; such relief is not available in the tax refund suit. See Cohen v. United States, 650 F.3d at 732 (noting that tax refund suit appeared to provide only individualized, retroactive relief, and not the ability to challenge a regulation or policy without penalty). As in Cohen, the tax refund remedy would not provide the relief appellants sought because, among other things, it does not allow for prospective relief. Id. at 732. Furthermore, although the tax refund suit provision typically will preclude suits by parties who bring a tax challenge in federal court without first exhausting their administrative remedies, see Cohen v. United States, 650 F.3d at 733, this is not a typical case. As in Cohen, plaintiffs here bring a pre-enforcement challenge to a final agency rule, rather than individualized adjudications of tax liability. The dispute before the Court is purely legal and ripe for review. Any administrative challenge would be futile, as the Secretary of the Treasury can be expected to deny plaintiffs’ complaint as contrary to the issued IRS regulations. Abstaining from a decision now would simply kick the" }, { "docid": "1864133", "title": "", "text": "agency action.” Cohen v. United States, 650 F.3d 717, 723 (D.C.Cir.2011) (en banc) (quoting Maryland Dep’t of Human Res. v. Dep’t of Health & Human Servs., 763 F.2d 1441, 1445 n.l (D.C.Cir.1985)). The APA permits judicial review of any “[ajgency action made reviewable by statute,” as well as any “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704 (emphasis added). Section 704 thus excludes from APA review those agency actions for which there are alternative judicial remedies in place. As the Supreme Court has explained: At the time the APA was enacted, a number of statutes creating administrative agencies defined the specific procedures to be followed in reviewing a particular agency’s action.... When Congress enacted the APA to provide a general authorization for review of agency action in the district courts, it did not intend that general grant of jurisdiction to duplicate the previously established special statutory procedures relating to specific agencies. Bowen v. Massachusetts, 487 U.S. 879, 903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (footnotes omitted). The APA thus \"does not provide additional judicial remedies in situations where the CongTess has provided special and adequate review procedures.” Bowen v. Massachusetts, 487 U.S. at 903, 108 S.Ct. 2722 (quoting Attorney General’s Manual on the Administrative Procedure Act 101 (1947)). Instead, where Congress already has created a separate cause of action for review of agency action, “[t]he form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court' specified by statute” unless, that proceeding is “inadequate].” 5 U.S.C. § 703. Although Section 704 disallows APA review of agency actions when other, adequate remedies are provided by statute, the Supreme Court has noted that this provision “should not be construed to defeat the central purpose of providing a broad spectrum of judicial review of agency action.” Bowen v. Massachusetts, 487 U.S. at 903, 108 S.Ct. 2722. Therefore, when determining whether alternative remedies are adequate, “the court must give the APA ‘a hospitable interpretation’ such that ‘only upon a showing of clear and convincing" }, { "docid": "20877742", "title": "", "text": "(Brennan, J., concurring). Thus, before proceeding to the merits of Plaintiffs’ claim, the Court must - ensure that the agency action at issue here is reviewable under the APA. Subject to two exceptions described below, the APA provides an avenue for judicial review of challenges to “agency action.” See 5 U.S.C. §§ 701-706. Under Section 702, “[a] person suffering legal wrong bécause of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. Section 702 contains two requirements. First, the plaintiffs must identify some “‘agency action’ that affects [them] in the specified fashion; it is judicial review ‘thereof to which [they are] entitled.’ ” Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (quoting 5 U.S.C. § 702). “Agency action,” in turn, is defined in the APA as “the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). When, as here, judicial review is sought “not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the ‘agency action’ in question must be ‘final agency action.’ ” Lujan, 497 U.S. at 882, 110 S.Ct. 3177 (citing 5 U.S.C. § 704, which provides that “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review”). To obtain review under Section 702, Plaintiffs must additionally show that they. are either “suffering legal wrong” because of the challenged agency action, or are “adversely affected or aggrieved by [that] action within the meaning of a relevant statute.” 5 U.S.C. § 702. A plaintiff claiming the latter, as the States do here, must establish that the “injury he complains of (his aggrievement, or the adverse effect upon him) falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Lujan," }, { "docid": "14883158", "title": "", "text": "702). For example, similar to the present circumstances, the APA does not waive a claim for back pay brought by a disappointed applicant for federal employment. Hubbard v. Administrator, E.P.A, 982 F.2d 531, 533 (D.C.Cir.1992) (back pay, similar to emotional harm suffered due to denial of application, constitutes “money damages” within meaning of section 702); Ward v. Brown, 22 F.3d at 520 (“back pay, as a claim for money damages, falls outside scope of the APA”); see generally Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (discussing term “money damages” in section 702 and finding that not all aspects of monetary relief constitute “money damages”); Commonwealth of Massachusetts v. Departmental Grant Appeals Board, 815 F.2d 778 (1st Cir.1987) (decided prior to Bowen and discussing meaning of term “money damages” in section 702). The verified complaint seeks “damages in the form of front and back pay, punitive damages, interest, costs and attorneys fees.” (Docket Entry # 1). The parties’ joint statement additionally requests relief in the form of vacation pay, sick leave, health insurance, an adjustment to plaintiffs service compensation date and emotional distress damages. (Docket Entry # 5). Hence, under the APA, plaintiff is not entitled to front pay, back pay, punitive damages, interest, vacation pay, emotional distress damages or “other money damages” within the meaning of section 702 of the APA. Plaintiffs cause of action, if any, under the APA is therefore limited to the foregoing relief. Turning to the general provisions of the APA and subject to certain exceptions, the APA permits “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute” to obtain “judicial review.” 5 U.S.C. § 702. The presumptive entitlement to judicial review under the APA “applies not only to agency action made reviewable by statute, but also to any other final agency action for which there is no other adequate remedy in a court.” NAACP v. Secretary of Housing & Urban Development, 817 F.2d 149, 152 (1st Cir.1987) (internal quotations of APA omitted). Agency review" }, { "docid": "17736408", "title": "", "text": "Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976). Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Id. at 38, 43, 96 S.Ct. at 1924, 1926. The party invoking federal jurisdiction bears the burden of establishing these elements. Since they are not mere pleading requirements but rather an indispensable part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, ie., with the manner and degree of evidence required at the successive stages of the litigation. Lujan v. Defenders of Wildlife, — U.S. -,-, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (some citations omitted) (footnote omitted). Statutory standing generally involves a different set of principles and requirements. SRCC seeks judicial review pursuant to Section 10(a) of the Administrative Procedure Act (“APA”). This section states in relevant part: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. 5 U.S.C. § 702. It contains two separate requirements. First, claimants must identify an “agency action” that affects them in the specified fashion; it is judicial review thereof to which they are entitled. “Agency action” is defined as “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). Where, as here, review is sought under the general review provisions of the APA, rather than pursuant to specific authorizations in the underlying statutes, the “agency action” must be “final agency action.” Lujan v. National Wildlife Fed’n, 497 U.S. 871, 882, 110 S.Ct. 3177, 3185, 111 L.Ed.2d 695 (1990) (citing 5 U.S.C. § 704, “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review”). Second, parties seeking review under § 702 must show that they have either suffered" } ]

[ { "docid": "22780801", "title": "", "text": "it arbitrarily to refuse to carry a guest upon demand. We certainly may assume that in its own interest it does not attempt to do so. The service affects so considerable a fraction of the public that it is public in the same sense in which any other may be called so. German Alliance Ins. Co. v. Kansas, 233 U. S. 389, The public does not mean everybody all the time. See Peck v. Tribune Co., 214 U. S. 185, 190. The rest of the plaintiff’s business, amounting to four-tenths, consists mainly in furnishing automobiles from its central garage on orders, generally by telephone. It asserts the right to refuse the service and no doubt would do so if the pay was uncertain, but it advertises extensively and, we must assume, generally accepts any seemingly solvent customer. Still, the bargains are individual, and however much they may tend towards uniformity in price probably have not quite the mechanical fixity of charges that attends the use of taxicabs from the Station and hotels. There is no contract with a third person to serve the public generally. The question whether as to this part of its business it is an agency for public use within the meaning of the statute is more difficult. Whether it is or not, the jurisdiction of the Commission is established by what we have said, and it would not be necessary to decide the question if the bill, in addition to an injunction against taking jurisdiction, did not pray that Order No. 44 of the Commission be declared void. That order, after declaring that the plaintiff was engaged in the business of a common carrier within the meaning of the act and so was within the jurisdiction of the Commission, required the plaintiff to furnish the information called for in a circular letter of April 12, 1913. What this information was does not appear with technical precision, but we assume that it was in substance similar to a later requirement of a schedule showing all rates and charges in force for any service performed by the plaintiff" } ]

[ { "docid": "22988698", "title": "", "text": "a single municipality or of contiguous municipalities ; (5) To transportation of persons over a route wholly or partly within a national park or state park where such transportation is sold in conjunction with or as part of a rail trip or trip over a regularly operated motor bus transportation system or line; (6) To the transportation of passengers by a person who is driving his own vehicle and the transportation of persons other than himself and members of his family when transporting such persons to or from their place of employment and when the owner of such vehicle is driving to or from his place of employment; provided that arrangements for any such transportation provided under the provisions of this subsection shall be made directly between the owner of such vehicle and the person who uses or intends to use such transportation. Sec. 211. (a) . . , And provided further, That the provisions of this paragraph shall not apply to any carrier holding a certificate or a permit under the provisions of this part or to any bona fide employee or agent of such motor carrier, so far as concerns transportation to be furnished wholly by such carrier or jointly with other motor carriers holding like certificates or permits, or with a common carrier by railroad, express, or water. Sec. 203. . . . (b) Nothing in this part, except the provisions of section 204-relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment shall be construed to include (1) motor vehicles employed solely in transporting school children and teachers to or from school; or (2) taxicabs, or other motor vehicles performing a bona fide taxicab service, having a capacity of not more than six passengers and not operated on a regular route or between fixed termini; or (3) motor vehicles owned or operated by or on behalf of hotels and used exclusively for the transportation of hotel patrons between hotels and local railroad or other common carrier stations; or (4) motor vehicles operated, under authorization, regulation, and control of" }, { "docid": "22370023", "title": "", "text": "in sailing or managing vessels. It establishes qualifications for seamen and prescribes crew requirements, safety equipment and sanitary facilities for certain types of vessels. “Sec. 203. . . . “(b) Nothing in this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment shall be construed to include (1) motor vehicles employed solely in transporting school children and teachers to or from school; or (2) taxicabs, or other motor vehicles performing a bona fide taxicab service, having a capacity of not more than six passengers and not operated on a regular route or between fixed termini; or (3) motor vehicles owned or operated by or on behalf of hotels and used exclusively for the transportation of hotel patrons between hotels and local railroad or other common carrier stations; or (4) motor vehicles operated, under authorization, regulation, and control of the Secretary of the Interior, principally for the purpose of transporting persons in and about the national parks and national monuments; or (4a) motor vehicles controlled and operated by any farmer, and used in the transportation of his agricultural commodities and products thereof, or in the transportation of supplies to his farm; or (4b) motor vehicles controlled and operated by a cooperative association as defined in the Agricultural Marketing Act, approved June 15, 1929, as amended; or (5) trolley busses operated by electric power derived from a fixed overhead wire, furnishing local passenger transportation similar to street-railway service; or (6) motor vehicles used exclusively in carrying livestock, fish (including shell fish), or agricultural commodities (not including manufactured products thereof); or (7) motor vehicles used exclusively in the distribution of newspapers; nor, unless and to the extent that the Commission shall from time to time find that such application is necessary to carry out the policy of Congress enunciated in section 202, shall the provisions of this part, except the provisions of section 204 relative to qualifications and maximum hows of service of employees and safety of operation or standards of equipment apply to: (8) The transportation" }, { "docid": "18145696", "title": "", "text": "carrier” is a person who provides motor vehicle transportation for compensation. 49 U.S.C. § 13102(12). Generally, the Secretary has jurisdiction over motor carriers that transport passengers “between a place in a State and a place in another State.” 49 U.S.C. § 10521(a)(1)(A). However, the R.I.C.A., 49 U.S.C. §§ 10101 et seq., exempts from regulation by the Secretary of Transportation, “a motor vehicle providing taxicab service and having capacity of not more than 7 passengers and not operated on a regular route or between specified places.” 49 U.S.C. § 10526(a)(2). Thus, if D.L.C.’s cars (none of which carries more than seven passengers or operates on a regular route or between specified places) are providing something called “taxicab service,” then the defendant is not entitled to the motor carrier exemption under the F.L.S.A. Because I have concluded that D.L.C. falls within the definition of the “business of operating taxicabs” as set forth by the Department of Labor in its Field Operations Manual, it is not necessary for me to reach this issue. But should I be wrong about the taxicab exemption, then I would have to conclude that defendant was entitled to the motor carrier exemption. I.C.C. exemptions, like F.L.S.A. exemptions, are to be interpreted narrowly. See, e.g., Mr. B’s Services, 934 F.2d at 120-122. Again, only a few courts have also considered—generally in the context of injunc-tive actions commenced by the Interstate Commerce Commission against car services—-whether certain taxi or limousine operators are “motor carriers.” They generally did so under the old Motor Carrier Act, which was worded slightly differently than the R.I.C.A. 49 U.S.C. § 303(b)(2) partially exempted from I.C.C. regulation “taxicabs, or other motor vehicles performing a bona fide taxicab service.” While the “bona fide taxicab service” language was in effect, the I.C.C. took the position that a bona fide taxicab service consisted solely of local operations, which is to say, within a municipality and its immediate environs. Whitman’s Black and White Cab Company, Inc., Common Carrier Application, 47 M.C.C. 737 (1948). The term “local” was thereafter defined by the I.C.C. to encompass a range of 70 miles or" }, { "docid": "7044765", "title": "", "text": "the body of this opinion. 49 U.S.C.A. § 303(a) “Except as otherwise provided in this section and in section 310a, no common carrier by motor vehicle subject to the provisions of this chapter shall engage in any interstate or foreign: operation on any public highway,, or within any reservation under the exclusive jurisdiction of the United States, unless there is in force with respect to such carrier a certificate of public convenience and necessity issued by the Commission authorizing sueh operations: Provided, however, That, subject to section 310, if any such carrier or predecessor in interest was -in bona fide operation as a common carrier by motor vehicle on June 1, 1935, over the route or routes or toithin the- territory for which application is made and has so operated sinoe that time, or if engaged in furnishing seasonal service only, was in bona fide operation on June 1, 1935, * * * ” (Emphasis supplied.) 49 U.S.C.A. § 80S (a) “Any certificate issued under section 808 or 307 shall specify the service to be rendered and the routes over tohich, the fixed termini, if any, betioeen which, and the intermediate and off-route points, if any, at which, and in case of operations not over specified routes or between fixed termini, the territory within tohich, the motor carrier is authorized to operate; and there shall, at the time of issuance and from time to time thereafter, be attached to the exercise of the privileges granted by the certificate such reasonable terms, conditions, and limitations as the public convenience and necessity may from time to time require, including terms, conditions, and limitations as to the .extension of the route'or routes of the carrier, and such terms and conditions as are necessary to carry out, with respect to the operations of the carrier, the requirements established by the Commission under section 304(a) (1) and (6): * * *” (Emphasis supplied.) Classification of Motor Carriers of Property, 2 M.C.C. 703 (1037). “Predetermined plan. — Regular - route operation when once established is repetitive in character and in its over-all aspects is essentially operation" }, { "docid": "7044764", "title": "", "text": "the power of regulation and requires the service and type of service which the regulatory authorities'determine to be necessary and convenient in the public' interest then some measure-of protection against indiscriminate and uncontrolled competition must be provided.. The injunction will be denied and the-complaint dismissed on the merits. “ * * * Provided, however, That no terms, conditions, or limitations (in the certificate) shall restrict the right of the carrier to add to his or its equipment and facilities over the routes, between the termini, or within the territory specified in 'the certificate, as the development of the business and the demands of the public shall require.” 49 U.S.O.A. § 303(a) (14) “The term ‘common carrier by motor vehicle’ means any person which holds itself out to the general public to engage in the transportation by motor vehicle in interstate or foreign commerce of passengers or property or any class or classes thereof for compensation, tohether over regular or irregular routes, except * * * ” (Emphasis supplied.) 49 U.S.C.A. § 304(b) quoted supra in the body of this opinion. 49 U.S.C.A. § 303(a) “Except as otherwise provided in this section and in section 310a, no common carrier by motor vehicle subject to the provisions of this chapter shall engage in any interstate or foreign: operation on any public highway,, or within any reservation under the exclusive jurisdiction of the United States, unless there is in force with respect to such carrier a certificate of public convenience and necessity issued by the Commission authorizing sueh operations: Provided, however, That, subject to section 310, if any such carrier or predecessor in interest was -in bona fide operation as a common carrier by motor vehicle on June 1, 1935, over the route or routes or toithin the- territory for which application is made and has so operated sinoe that time, or if engaged in furnishing seasonal service only, was in bona fide operation on June 1, 1935, * * * ” (Emphasis supplied.) 49 U.S.C.A. § 80S (a) “Any certificate issued under section 808 or 307 shall specify the service to be" }, { "docid": "345879", "title": "", "text": "defines Class A carriers as: common carriers of passengers and/or property operating over a fixed route or between fixed termini in intrastate and interstate commerce, under Certificates of Public Convenience and Necessity. . Had the defendants argued, or had they established, that state law required all prices for identical services along the same route be uniform, this would be a very different case. We do not doubt that the five subject states are capable of entirely displacing the marketplace mechanism of setting prices with a system in which price competition plays no part. The states might have determined that their businesses and consumers would be best protected by a regulatory rate-making process that mandates uniform prices for a given service, typically based on a “just and reasonable” standard, than by the marketplace. Consequently, they could have replaced price competition with a state-mandated price-setting scheme in which intrastate common carriers would compete, but only by means other than price competition. The nature of the carrier’s participation in such a system regulated by legislative or administrative mandate would seem to be entirely different from the nature of its role in the marketplace. Where price competition is permitted (and protected), the individual participant attempts to lower prices so as to attract business from his competitors. Once prices are regulated, however, his participation in the price-setting “system” changes significantly, for his interest will usually lie in raising prices instead of lowering them. By charging a lower price he will ordinarily not gain an advantage over his competitors, who must always charge an identical price. Moreover, he will act in essentially the same manner regardless of whether he is alone or combining with other carriers, by attempting to convince the regulatory body to accept higher tariffs. Were prices made uniform by state mandate, we would question the applicability of an antitrust theory designed to stimulate price competition. Indeed it would be doubtful that such practices as are engaged in by the defendant conferences could correctly be said to be “in restraint of trade,” within the meaning of Section 1 of the Sherman Act. The parties" }, { "docid": "15693643", "title": "", "text": "discloses that no one has ever been refused any of the three services which defendant purports to furnish. It is not likely that defendant or any of its competitors would have sufficient equipment to care for all the needs and demands of all the railroads in a city the size of Chicago, nor is it necessary, for an unsupplied demand will usually result in sufficient equipment for that purpose. Plaintiff seeks to distinguish between a contract carrier and any other type of carrier, and it urges that each phase of defendant’s business should be considered separately in order to determine the character of the cartage here involved, relying on Terminal Taxicab Co. v. Kutz, 241 U.S. 252, 36 S.Ct. 583, 60 L.Ed. 984, Ann.Cas. 1916D, 765, and Rathbun v. Ocean Accident Corp., 299 Ill. 562, 132 N.E. 754, 19 A.L.R. 140. In the Kutz case the question was whether the plaintiff was a common carrier under the statute. The court held it was not. It was a livery corporation and asserted the right to refuse customers, a thing which the present defendant never did. There, also, was an exclusive dedication of equipment to a particular customer, which is not present in the instant case. In the Rathbun case there was an exclusive dedication to the customer, and there was no holding out of service to the public. Plaintiff further relies on Thomson v. United States, 321 U.S. 19, 64 S.Ct. 392, 394, 88 L.Ed. 513, in support of its contention that “pick-up and delivery” service is not a common carrier service. In that case an application was made by the railroad company to the Interstate Commerce Commission for rights under the “grandfather clause” as a motor carrier to render coordinated rail-truck freight service. The court held that under paragraph 206(a) of Part II of the Interstate Commerce Act, 49 U.SlC.A. § 306(a), such certificate could be awarded only to one who was a common carrier by motor vehicle. The court said: “ * * * Thus where a person holds himself out to the general public to engage in a" }, { "docid": "4632428", "title": "", "text": "strong and plaintiff’s personal testimony would indicate that to pay the tax in question would be severely burdensome. 11. The undisputed verbal testimony of plaintiff and two drivers tends to show that the drivers may refuse calls in their discretion, and do so on occasions if not deemed remunerative. 12. That plaintiff in arranging with his drivers uses expressions resembling a verbal leasing of the cab, the purpose being, as the Court finds, to avoid liability to the taxation in question. 13. That each of the drivers had knowledge and were familiar with all of the facts heretofore found. 14. That plaintiff is not a mere lessor of taxicabs, but operates his line of taxicabs as a common carrier of passengers for hire. Conclusions of Law. From the foregoing facts found, I conclude as matters of law the following: 1. That when a patron for taxicab service calls plaintiff’s telephone number he receives the response of plaintiff’s operator, asks for the furnishing of a cab, and is assured that the cab will be furnished in response to and in conformity with his call, a contract for taxicab service is concluded with the plaintiff on the one part as a carrier and the patron on the other part as the passenger or the representative of the passenger. 2. That plaintiff assumes and is obligated to fulfill all obligations of a carrier to passengers hiring and riding in his cabs, and plaintiff is entitled to the protection of an assured with respect to liability policies carried in connection with the operation of his cabs. 3. That the plaintiff’s arrangement with the drivers of his taxicabs when all related facts are considered does not amount to a true leasing of the respective cabs, but to an ingenious method of determining and fixing a fair remuneration to the drivers for their service. 4. That neither the tax provision in § 1400, 26 U.S.C.A. Int.Rev.Code, nor the tax provision in § 1600, 26 U.S.C.A. Int.Rev.Code, are shown to be illegal. 5. That neither the tax provision in § 1400, 26 U.S.C.A. Int.Rev.Code, nor the tax" }, { "docid": "18145695", "title": "", "text": "Wirtz, so application of the Labor Department definition would not have changed the result in those cases, either. Significantly, D.L.C.’s business possesses none of the traits that rendered Brewah, Airlines Transportation and the carrier in Wirtz ineligible for the taxicab exemption. In view of the Department of Labor’s definition, the nature of D.L.C.’s advertising is not determinative. Defendant is entitled to the taxicab exemption. Section 213(b)(1): The Motor Carrier Exemption As an alternative to the taxicab exemption, defendant argues that it is exempt from the minimum hours rule because it is an interstate “motor carrier” whose activi ties (including labor regulations pertaining to its drivers) are subject to the exclusive regulation of the Secretary of Transportation. The exemption here relied on is Section 213(b)(1) of the F.L.S.A., which provides that Section 207 of that statute does not apply “to any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of Title 49.” 29 U.S.C. § 213(b)(1). A “motor carrier” is a person who provides motor vehicle transportation for compensation. 49 U.S.C. § 13102(12). Generally, the Secretary has jurisdiction over motor carriers that transport passengers “between a place in a State and a place in another State.” 49 U.S.C. § 10521(a)(1)(A). However, the R.I.C.A., 49 U.S.C. §§ 10101 et seq., exempts from regulation by the Secretary of Transportation, “a motor vehicle providing taxicab service and having capacity of not more than 7 passengers and not operated on a regular route or between specified places.” 49 U.S.C. § 10526(a)(2). Thus, if D.L.C.’s cars (none of which carries more than seven passengers or operates on a regular route or between specified places) are providing something called “taxicab service,” then the defendant is not entitled to the motor carrier exemption under the F.L.S.A. Because I have concluded that D.L.C. falls within the definition of the “business of operating taxicabs” as set forth by the Department of Labor in its Field Operations Manual, it is not necessary for me to reach this issue. But should I be wrong" }, { "docid": "22988689", "title": "", "text": "highways thereof.” 49 Stat. 543, as amended, 54 Stat. 920, 49 U. S. C. § 302 (a) and (b). “Sec. 203. . . . “(b) Nothing in this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment shall be construed to include (1) motor vehicles employed solely in transporting school children and teachers to or from school; or (2) taxicabs, or other motor vehicles performing a bona fide taxicab service, having a capacity of not more than six passengers and not operated on a regular route or between fixed termini; or (3) motor vehicles owned or operated by or on behalf of hotels and used exclusively for the transportation of hotel patrons between hotels and local railroad or other common carrier stations; or (4) motor vehicles operated, under authorization, regulation, and control of the Secretary of the Interior, principally for the purpose of transporting persons in and about the national parks and national monuments; or (4a) motor vehicles controlled and operated by any farmer when used in the transportation of his agricultural commodities and products thereof, or in the transportation of supplies to his farm; or (5) motor vehicles controlled and operated by a cooperative association as defined in the Agricultural Marketing Act, approved June 15, 1929, as amended, or by a federation of such cooperative associations, if such federation possesses no greater powers or purposes than cooperative associations so defined; or (6) motor vehicles used in carrying property consisting of ordinary livestock, fish (including shell fish), or agricultural commodities (not including manufactured products thereof), if such motor vehicles are not used in carrying any other property, or passengers, for compensation; or (7) motor vehicles used exclusively in the distribution of newspapers; or (7a) the transportation of persons or property by motor vehicle when incidental to transportation by aircraft; nor, unless and to the extent that the Commission shall from time to time find that such application is necessary to carry out the policy of Congress enunciated in section 202, shall the provisions of" }, { "docid": "15124733", "title": "", "text": "the business of a contract carrier by motor vehicle in interstate or foreign commerce on any public highway or within any reservation under the exclusive jurisdiction of the United States unless there is in force with respect to such carrier a permit issued by the Commission, authorizing such person to engage in such business: Provided, That, subject to section 210 [310], if any such carrier or a predecessor in interest was in bona fide operation as a contract carrier by motor vehicle on July 1, 1935, over the route or routes or within the territory for which application is made and has so operated since that time, or, if engaged in furnishing seasonal service, only, was in bona fide operation on July 1, 1935, during the season ordinarily covered by its operations, except in either instance as to interruptions of service over which the applicant or its predecessor in interest had no control, the Commission shall issue such permit, without further proceedings, if application for such permit was made to the Commission as provided in paragraph (b) of this section * * Section 207(a) of the Motor Carrier Act, 49 U.S.C.A. § 307(a) provides: “Subject to section 310, a certificate shall be issued to any qualified applicant therefor * * * Provided, however, that no such certificate shall be issued to any common carrier of passengers by motor vehicle for operations over other than a regular route or routes, and between fixed termini, except to such carriers as may be authorized to engage in special or charter operations.” That subsection reads: “The term ‘common carrier by motor vehicle’ means :any person which holds itself out to the general public to engage in the transportation by motor vehicle in interstate or foreign commerce of passengers or property * * * for compensation, whether over regular or irregular routes * * *,” See footnote 3. That subsection provides: “The term ‘contract carrier by motor vehicle’ means any person which, under individual contracts or agreements, engages in the transportation (other than transportation referred to in paragraph (14)) by motor vehicle of passengers or" }, { "docid": "22650334", "title": "", "text": "and teachers to or from school; or (2) taxicabs, or other motor vehicles performing a bona fide taxicab service, having a capacity of not more than six passengers and not operated on a regular route or between fixed termini; or (3) motor vehicles owned or operated by or on behalf of hotels and used exclusively for the transportation of hotel patrons between hotels and local railroad or other common carrier stations; or (4) motor vehicles operated, under authorization, regulation, and control of the Secretary of the Interior, principally for the purpose of transporting persons in and about the national parks and national monuments; or (4a) motor vehicles controlled and operated by any farmer, and used in the transportation of his agricultural commodities and products thereof, or in the transportation of supplies to his farm; or (4b) motor vehicles controlled and operated by a cooperative association as defined in the Agricultural Marketing Act, approved June 15, 1929, as amended; or (5) trolley busses operated by electric power derived from a fixed overhead wire, furnishing local passenger transportation similar to street-railway service; or (6) motor vehicles used exclusively in carrying livestock, fish (including shell fish), or agricultural commodities (not including manufactured products thereof); or (7) motor vehicles used exclusively in the distribution of newspapers; nor, unless and to the extent that the Commission shall from time to time find that such application is necessary to carry out the policy of Congress enunciated in section 202, shall the provisions of this, part, except the provisions of section 804 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment apply to: (8) The transportation of passengers or property in interstate or foreign commerce wholly within a municipality or between contiguous municipalities or within a zone adjacent to and commercially a part of any such municipality or municipalities, except when such transportation is under a common control, management, or arrangement for a continuous carriage or shipment to or from a point without such municipality, municipalities, or zone, and provided that the motor carrier engaged in such transportation" }, { "docid": "22988688", "title": "", "text": "out the national transportation policy declared in the Interstate Commerce Act, . . .” 49 U. S. C. § 303 (b), instead of “the policy of Congress enunciated in section 202, . . . .” We have adopted that interpretation in this opinion. (2) Material Provisions of Part II of the Interstate Commerce Act. “Sec. 202. (a) The provisions of this part apply to the transportation of passengers or property by motor carriers engaged in interstate or foreign commerce and to the procurement of and the provision of facilities for such transportation, and the regulation of such transportation, and of the procurement thereof, and the provision of facilities therefor, is hereby vested in the Interstate Commerce Commission. “(b) Nothing in this part shall be construed to affect the powers of taxation of the several States or to authorize a motor carrier to do an intrastate business on the highways of any State, or to interfere with the exclusive exercise by each State of the power of regulation of intrastate commerce by motor carriers on the highways thereof.” 49 Stat. 543, as amended, 54 Stat. 920, 49 U. S. C. § 302 (a) and (b). “Sec. 203. . . . “(b) Nothing in this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment shall be construed to include (1) motor vehicles employed solely in transporting school children and teachers to or from school; or (2) taxicabs, or other motor vehicles performing a bona fide taxicab service, having a capacity of not more than six passengers and not operated on a regular route or between fixed termini; or (3) motor vehicles owned or operated by or on behalf of hotels and used exclusively for the transportation of hotel patrons between hotels and local railroad or other common carrier stations; or (4) motor vehicles operated, under authorization, regulation, and control of the Secretary of the Interior, principally for the purpose of transporting persons in and about the national parks and national monuments; or (4a) motor vehicles controlled" }, { "docid": "22780798", "title": "", "text": "Supreme Court and the decree was affirmed by the Court of Appeals. 43 App. D. C. 120. The facts are agreed. The plaintiff is a Virginia corporation authorized by its charter, with copious verbiage, to build, buy, sell, let and operate automobiles, taxicabs, and other vehicles, and to carry passengers and goods by such vehicles; but not to exercise any of the powers of a public service corporation. It does business in the Dis trict, and the important thing is what it does, not what its charter says. The first item, amounting to about thirty-five hundredths of the whole, is done under a lease for years from the Washington Terminal Company, the owner of the Union Railroad Station in Washington, which we have mentioned as excluded from the definition of common carriers. By this lease the plaintiff has the exclusive right to solicit livery and taxicab business from all persons passing to or from trains in the Union Station, and agrees in its turn to provide a service sufficient in the judgment of the Terminal Company to accommodate persons using the Station, and is to pay over a certain percentage of the gross receipts. It may be assumed that a person taking a taxicab at the station would control the whole vehicle both as to contents, direction, and time of use, although not, so far as indicated, in such a sense as to make the driver of the machine his servant, according to familiar distinctions. The last facts however appear to be immaterial and in no degree to cast doubt upon the plaintiff’s taxicabs when employed as above stated being a public utility by ancient usage and understanding, Munn v. Illinois, 94 U. S. 113, 125, as well as common carriers by the manifest meaning of the act. The plaintiff is ''an agency for public use for the conveyance of persons’ &c.; and none the less that it only conveys one group of customers in one vehicle. The.exception of the Terminal Company from the definition of common carriers does not matter. The plaintiff is not its servant and does not" }, { "docid": "345878", "title": "", "text": "of sections 1 to 7 of this title; and it shall be the duty of the several United States attorneys, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations. . . Section 1 of the Sherman Act, 15 U.S.C. § 1, provides in relevant part: Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal . . Interstate Commerce Tariff Circular No. 3 provides, “The term joint rate means a rate that applies over the lines or routes of two or more carriers. . . . ” Horace F. Hartley, Director of Transportation Rates and Services, Georgia Public Service Commission, described a joint rate as a rate derived by two or more carriers to cover a single interlining movement of freight in which those carriers participate. Deposition of Horace F. Hartley at 61-62. . Rule 2 of the Rules and Regulations defines Class A carriers as: common carriers of passengers and/or property operating over a fixed route or between fixed termini in intrastate and interstate commerce, under Certificates of Public Convenience and Necessity. . Had the defendants argued, or had they established, that state law required all prices for identical services along the same route be uniform, this would be a very different case. We do not doubt that the five subject states are capable of entirely displacing the marketplace mechanism of setting prices with a system in which price competition plays no part. The states might have determined that their businesses and consumers would be best protected by a regulatory rate-making process that mandates uniform prices for a given service, typically based on a “just and reasonable” standard, than by the marketplace. Consequently, they could have replaced price competition with a state-mandated price-setting scheme in which intrastate common carriers would compete, but only by means other than price competition. The nature of the carrier’s participation in such a system regulated by legislative or administrative mandate" }, { "docid": "22370022", "title": "", "text": "came within the same exemption as loaders, dockmen and helpers.” Levinson v. Spector Motor Service, 389 Ill. 466, 473-474, 59 N. E. 2d 817, 820. The Safety Appliance Acts, approved March 2, 1893, 27 Stat. 631; March 2, 1903, 32 Stat. 943; April 14, 1910, 36 Stat. 298; and February 28, 1920, 41 Stat. 499; see Title 45, U. S. C.—Railroads, and 49 U. S. C. § 26, all relate to railroads and are enforced by the Interstate Commerce Commission. The Hours of Service Act, approved March 4, 1907, 34 Stat. 1415, 45 U. S. C. § 61, requires the Interstate Commerce Commission to enforce maximum hours of service for railroad employees engaged in the movement of trains. It includes also operators, train dispatchers and others having much to do with the safety of train movements although not riding the trains. The Seamen’s Act, approved March 4, 1915, 38 Stat. 1164, see 46 U. S. C. § 673, prescribes maximum hours of service at sea and at anchor for sailors, firemen, oilers and others engaged in sailing or managing vessels. It establishes qualifications for seamen and prescribes crew requirements, safety equipment and sanitary facilities for certain types of vessels. “Sec. 203. . . . “(b) Nothing in this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment shall be construed to include (1) motor vehicles employed solely in transporting school children and teachers to or from school; or (2) taxicabs, or other motor vehicles performing a bona fide taxicab service, having a capacity of not more than six passengers and not operated on a regular route or between fixed termini; or (3) motor vehicles owned or operated by or on behalf of hotels and used exclusively for the transportation of hotel patrons between hotels and local railroad or other common carrier stations; or (4) motor vehicles operated, under authorization, regulation, and control of the Secretary of the Interior, principally for the purpose of transporting persons in and about the national parks and national monuments;" }, { "docid": "15124727", "title": "", "text": "but that, in issuing a permit to a contract carrier, it may specify only the “business of the contract carrier covered thereby and the scope thereof,” Section 209(b). This difference in language no doubt reflects Congress’ view of what would best serve the public interest. But there is nothing before us indicating that Congress intended to regulate only plaintiff’s “business,” and not its “service.” Its operations would seem to fall consistently into either plan of regulation, and we must look elsewhere for guidance as to the intent of Congress. Fifth, plaintiff points to Section 207 (a), which requires that common carriers operate over regular routes and between fixed termini, and argues that the proviso, authorizing special or charter operations by “such” carriers, shows an intent to restrict the meaning of common carriers to those which operate over regular routes and between fixed termini. But it is apparent that “such” refers to “common carrier of passengers by motor vehicle,” and it is clear from Section 203(a) (14) that carriers need not operate over fixed routes to come within the definition of common carriers. The fact that common carriers may be granted the right, under the last clause of Section 207(a), to engage in special and charter operations, does not indicate that such operations are not common carriage. It was, rather, made necessary by the first clause of the proviso (which broadly requires common carriage operations to be over regular routes), since charter and special operations are frequently over irregular routes. There remains the question whether plaintiff is a “common carrier” within the terms of Section 203(a) (14) or merely a “contract carrier” under Section 203(a) (IS). Plaintiff contends that there is no “holding out to the general public” where a carrier does not take all comers, but only those who, as a group, negotiate a charter of a bus for a particular journey (so-called charter operations) or those who individually purchase tickets for a particular journey as members of a group assembled by the carrier itself (so-called special operations), i. e., that the statutory definition of “common carrier” does not —" }, { "docid": "22650333", "title": "", "text": "be done by Congress, and no duty in that respect should be delegated to the Commission, which has no experience which particularly fits it for the performance of such a duty. Our authority over qualifications and hours of service of employees should, therefore, be confined to the needs of safety in operation. . . .” On April 26, 1940, the House conferees reported to the House a compromise bill agreed on by the conference committee which left § 204 (a) (1), (2), and (3) of the Motor Carrier Act unamended. 86 Cong. Rec. 7847; H. R. Rep. No. 2016, 76th Cong., 3d Sess. On May 9, 1940, the House because of disagreement with sections of this bill not here relevant voted to recommit the bill to the conference committee. 86 Cong. Rec. 8986. “(b) Nothing in this part, except the provisions of section relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment shall be construed to include (1) motor vehicles employed solely in transporting school children and teachers to or from school; or (2) taxicabs, or other motor vehicles performing a bona fide taxicab service, having a capacity of not more than six passengers and not operated on a regular route or between fixed termini; or (3) motor vehicles owned or operated by or on behalf of hotels and used exclusively for the transportation of hotel patrons between hotels and local railroad or other common carrier stations; or (4) motor vehicles operated, under authorization, regulation, and control of the Secretary of the Interior, principally for the purpose of transporting persons in and about the national parks and national monuments; or (4a) motor vehicles controlled and operated by any farmer, and used in the transportation of his agricultural commodities and products thereof, or in the transportation of supplies to his farm; or (4b) motor vehicles controlled and operated by a cooperative association as defined in the Agricultural Marketing Act, approved June 15, 1929, as amended; or (5) trolley busses operated by electric power derived from a fixed overhead wire, furnishing local passenger" }, { "docid": "22988699", "title": "", "text": "part or to any bona fide employee or agent of such motor carrier, so far as concerns transportation to be furnished wholly by such carrier or jointly with other motor carriers holding like certificates or permits, or with a common carrier by railroad, express, or water. Sec. 203. . . . (b) Nothing in this part, except the provisions of section 204-relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment shall be construed to include (1) motor vehicles employed solely in transporting school children and teachers to or from school; or (2) taxicabs, or other motor vehicles performing a bona fide taxicab service, having a capacity of not more than six passengers and not operated on a regular route or between fixed termini; or (3) motor vehicles owned or operated by or on behalf of hotels and used exclusively for the transportation of hotel patrons between hotels and local railroad or other common carrier stations; or (4) motor vehicles operated, under authorization, regulation, and control of the Secretary of the Interior, principally for the purpose of transporting persons in and about the national parks and national monuments; or (4a) motor vehicles controlled and operated by any farmer when used in the transportation of his agricultural commodities and products thereof, or in the transportation of supplies to his farm; or (5) motor vehicles controlled and operated by a cooperative association as defined in the Agricultural Marketing Act, approved June 15, 1929, as amended, or by a federation of such cooperative associations, if such federation possesses no greater powers or purposes than cooperative associations so defined; or (6) motor vehicles used in carrying property consisting of ordinary livestock, fish (including shell fish), or agricultural commodities (not including manufactured products thereof), if such motor vehicles are not used in carrying any other property, or passengers, for compensation; or (7) motor vehicles used exclusively in the distribution of newspapers; or (7a) the transportation of persons or property by motor vehicle when incidental to transportation by aircraft; nor, unless and to the extent that the Commission" }, { "docid": "4115228", "title": "", "text": "this exemption is not available to Associated as applied to him. Defendants have concluded otherwise and seek summary judgment in their favor, arguing that their business falls within the taxicab exemption to the FLSA’s wage and overtime requirements. The FLSA exempts from its overtime provisions “any driver employed by an employer engaged in the business of operating taxicabs.” See 29 U.S.C. § 213(b)(17). The FLSA does not include any definition of the term “business of operating taxicabs.” Defendants rely on the definition provided in Chapter 24h of the Department of Labor Field Operations Handbook (1999 ed.) which states: 24h01 “ Business of operating taxicabs.” The taxicab business consists normally of common carrier transportation in small motor vehicles of persons and such property as they may carry with them to any requested destination in the community. The business operates without fixed routes or contracts for recurrent transportation. It serves the miscellaneous and predominantly local transportation need of the community. It may include such occasional and unscheduled trips to or from transportation terminals as the individual passengers may request, and may include stands at the transportation terminals as well as at other places where numerous demands for taxicab transportation may be expected. Defendants contend that its business falls directly within the parameters of this regulatory definition as applied in Cariani v. D.L.C. Limousine Service, Inc., 363 F.Supp.2d 637 (S.D.N.Y.2005), where the court, focusing on the above definition, found that the exemption applied to a limousine company where the company offered door to door services with the time and destination determined by the convenience of the customer, the ears did not adhere to fixed routes, the company did not have contracts with airlines and its fares were more or less equivalent to the fares of taxicab companies. Defendants contend that the business of Associated is similar to the limousine company in Cariani in that plaintiffs duties consisted of driving passengers to requested destination in sedan type vehicles (Lincoln Town Cars) without fixed routes. In addition, Associated is not a party to a contract for recurrent transportation, but rather operates on an event by" } ]

[ { "docid": "10680531", "title": "", "text": "also for acting negligently. See Spencer v. Aetna Life & Cas. Ins. Co., 227 Kan. 914, 611 P.2d 149, 155 (1980). In Missouri, however, to hold an insurance company liable for bad faith refusal to settle the plaintiff must provide proof that the insurer acted in bad faith. See Ganaway v. Shelter Mut. Ins. Co., 795 S.W.2d 554, 556 (Mo.Ct.App.1990). The district court, in this diversity case, was initially correct in applying Kansas law to determine whether Kansas or Missouri law should govern Ms. Moses’ negligent or bad faith refusal to settle claim. See Mem’l Hosp. of Laramie County v. Healthcare Realty Trust, Inc., 509 F.3d 1225, 1229 (10th Cir.2007). In Kansas, an insurer’s duties are contractually based. See Glenn v. Fleming, 247 Kan. 296, 799 P.2d 79, 90 (1990) (stating that “a wrongful failure to settle arises from the insurer’s contractual obligation to defend” and “[a]n action to enforce that obligation is accordingly based on breach of contract.”). Breach of this contractual duty, however, is determined by a tort standard of care. See id. Since 1957, Kansas courts “have used ‘negligence,’ ‘due care,’ and other tort expressions to describe the substance of what is a contract duty.” Id. This contract-tort fusion has created confusion in defining the duty of good faith, and in describing situations involving negligent or bad faith breaches of duties to settle and defend. See id. This case involves two issues regarding the district court’s choice-of-law determi nation arising out of the insurance contract. First, whether the district court erred in applying Missouri law to determine whether Allstate had a contractual obligation to act in good faith to settle. Second, whether the district court was wrong in applying Missouri law to the question of Allstate’s fulfillment of such obligation. 1. Law Governing the Existence of Allstate’s Contractual Obligation to Act in Good Faith to Settle Kansas courts follow the Restatement (First) of Conflict of Laws (1934) in addressing choice-of-law issues. See ARY Jewelers, L.L.C. v. Krigel, 277 Kan. 464, 85 P.3d 1151, 1161 (2004). The Restatement contains two general rules for contracts cases. See Restatement (First)" } ]

[ { "docid": "10589178", "title": "", "text": "matter of law. The court does not reach these issues because of its determination that there was insufficient evidence to support the jury’s finding. IV. New Trial Motion The defendants have moved, in the alternative, for a new trial. However, the motion for a new trial is moot in light of the court’s ruling on the motion for judgment as a matter of law. V. Conclusion IT IS THEREFORE ORDERED BY THE COURT that the defendants’ motion for judgment as a matter of law (Doc. # 148) is granted. IT IS FURTHER ORDERED that the defendants’ motion for a new trial (Doc. # 148) is denied as moot. IT IS SO ORDERED. . Under Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), this court is bound in this diversity action by the choice of law provisions of the forum state of Kansas. Kansas applies the rule of lex loci delicti to the choice of law for tort claims. Brown v. Kleen Kut Mfg. Co., 238 Kan. 642, 714 P.2d 942, 245 (1986). \"Under this rule, the law of the state where the tort occurred is applied to the substantive rights of the parties.” Id. Therefore, Kansas law applies to the plaintiff's claim because the plaintiff was injured when using the defendants’ mini-trampoline in Kansas. . Fortunately, whether the defendants had a continuing duty to warn is not at issue in this case. . In Mason v. Texaco, Inc., Judge Theis extended the \"state of the art” warning rule of Wooderson to all manufacturers, not just manufacturers of ethical drugs. 741 F.Supp. at 1482. Again, in contrast to the present case, in Mason there was already abundant information in the field at all relevant times that the defendant's product caused the plaintiff's injury. Id. Thus the court did not reach our issue there either. . There may be a good policy reason for not incorporating the duty to warn into the duty to test. A manufacturer must currently keep abreast of all information in the field, including their own, and warn foreseeable users" }, { "docid": "10930551", "title": "", "text": "must first be obtained against the insured. White v. Goodville Mutual Casualty Co., 226 Kan. 191, 192, 596 P.2d 1229, 1230 (1979); Miller v. William A. Smith Constructing Co., 226 Kan. 172, 175, 603 P.2d 602, 604-05 (1979); Bayless v. Bayless, 193 Kan. 79, 80, 392 P.2d 132, 133 (1964). Plaintiff concedes that Kansas common law does not permit such a direct action. It contends, however, that this case must be decided on the basis of Wisconsin law, which does permit such actions. See Wis. Stat. § 803.04(2)(a). In response to this contention, the insurer/defendants raise the following three arguments: (1) Wisconsin law does not apply, (2) the Wisconsin direct action statute is procedural rather than substantive, and thus inapplicable in this Kansas forum, and (3) even if substantive, enforcement of the Wisconsin direct action statute would be contrary to Kansas public policy, and thus forbidden. We examine each of these arguments in turn. A. Choice of Law. In a diversity action such as this, a federal court must apply the choice of law rules of the forum state. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941); Fagan v. John Hancock Mutual Life Ins. Co., 200 F.Supp. 142, 143 (D.Kan. 1961). Plaintiff characterizes this suit as a tort action — contending that it wishes merely to enforce the injured workers’ initial right to recover against the manufacturer/defendants for their personal injuries. In tort actions, Kansas follows the rule of lex loci delicti — the law of the state where the tort occurred. Ling v. Jan’s Liquors, 237 Kan. 629, 634, 703 P.2d 731, 735 (1985). Plaintiff further notes that the workers were injured in Wisconsin rather than in Kansas. On the other hand, the insurer/defendants suggest that, at least as to them, the suit is more in the nature of a contract action. Plaintiff is attempting to enforce the insurer/defendants’ contracts of insurance with the manufacturer/defendants. In contract actions, Kansas applies the rule of lex loci contractus — the law of the state in which the contract is made." }, { "docid": "21387097", "title": "", "text": "S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party, who “may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256; Thus, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. III. Discussion Plaintiff asserts seven claims in this action: breach of fiduciary duty, tortious interference with contract or prospective contracts, fraud, conspiracy, negligence per se, invasion of privacy, and breach of contract. Defendants argue that all of the tort claims are barred by the applicable statute of limitations. Defendants further contend that the breach of contract claim hás no merit because plaintiff was not an intended third-party beneficiary of the contracts between defendants and Wolf Creek. A Choice of Law Before addressing the validity of defendants’ arguments, the court must determine what state’s substantive law governs plaintiffs claims. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (in diversity actions, federal court must apply the substantive law of the forum state). In making this determination, the court first applies the choice-of-law rules of the state in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Kansas adheres to a lex loci delicti approach, meaning that the law of the “place of the wrong” controls. Ling v. Jan’s Liquors, 237 Kan. 629, 703 P.2d 731, 735 (1985). The “place of the wrong” is the location in which the last event necessary to impose liability occurred. Id. Neither side addresses the choice-of-law issue. Defendants merely assume in their pleadings that Kansas law is applicable. Plaintiff, although noting that Clinical is a Kansas corporation and that TriSource is a Missouri corporation with its principal office in Missouri, also assumes that Kansas law governs this case. In Ling, the Kansas Supreme Court held" }, { "docid": "2490934", "title": "", "text": "contract. The court has reviewed the submitted copy of Jay West deposition exhibit 90 and the corresponding portions of the Jay West deposition which were provided in plaintiff’s supplemental response. As defendant’s contentions do not turn upon most of the facts found in those exhibits, the court sees little reason to outline the factual basis for plaintiff’s claims of fraudulent misrepresentation. CHOICE OF LAW Since this court is acting upon diversity jurisdiction, it must apply the choice of law rules of the forum state, Kansas. Klaxton Co. v. Stentor Elec. Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); Missouri Pac. R. Co. v. Kansas Gas & Elec. Co., 862 F.2d 796, 798 n. 1 (10th Cir.1988). The Uniform Commercial Code (Code), as adopted in Kansas, recognizes that parties may agree for the law of another state to govern their rights and duties so long as the transaction at issue has “a reasonable relation” to that state. K.S.A. 84-1-105(1). See National Equip. Rental, Ltd. v. Taylor, 225 Kan. 58, 60-61, 587 P.2d 870 (1978). Massachusetts law will govern the contract claims in this case by virtue of the choice of law provision in the Basic Agreement. In a tort action, Kansas courts apply the doctrine of lex loci delicti, where the wrong occurred. Hawley v. Beech Aircraft Corp., 625 F.2d 991, 993 (10th Cir.1980); Ling v. Jan’s Liquors, 237 Kan. 629, 634, 703 P.2d 731 (1985). Where the wrong occurred is generally considered to be the place where the injury was suffered. Ling, 237 Kan. at 634, 703 P.2d 731. Under this doctrine, Kansas law would govern the plaintiff’s fraud claim. Defendant contends this doctrine should not be applied and, instead, the court should follow the parties’ choice of Massachusetts law found in the Basic Agreement. Defendant’s reason is apparent as Kansas law allows punitive damages on fraud claims while Massachusetts law does not. For the following reasons, the court holds that Kansas law will govern the plaintiff’s tort claims. First, even though Kansas courts have not specifically addressed whether a contract choice of law" }, { "docid": "6962898", "title": "", "text": "workers had no disease at all. Finally, Raymark contends that if it had known the true facts, it would never have paid any of the tire workers’ claims. The court must now determine whether the facts as alleged support the claims asserted by Raymark. Because there are pendent state law claims asserted, the court first must determine which state’s law controls. II. Choice of Law A federal court sitting in diversity must apply the substantive law of the state in which it sits, including that state’s choice of law rules. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); Robert A. Wachsler, Inc. v. Florafax Int'l, Inc., 778 F.2d 547, 549 (10th Cir.1985). Therefore, the court must look to Kansas law to determine which state’s laws should be applied. Kansas follows the lex loci delicti approach of the First Restatement, which means the law of the “place of the wrong” controls. Ling v. Jan’s Liquors, 237 Kan. 629, 634, 703 P.2d 731 (1985) (rejecting the “most significant relationship” analysis of RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145 (1969)); RESTATEMENT OF CONFLICTS § 378 (1934). Thus, the law of the state where the tort occurred applies. Although this determination is somewhat uncertain when tortious conduct in one state causes injury in another, the Kansas Supreme Court ruled that the “place of the wrong” is that place where the last event necessary to impose liability took place. Ling, 237 Kan. at 634-35, 703 P.2d 731; see also RESTATEMENT OF CONFLICTS § 377. In a personal injury tort case, such as Ling, the “last event” is the injury. Thus, the law of the place of injury applies. 237 Kan. at 634-35, 703 P.2d 731. The Kansas court has not addressed the issue of where the place of the wrong is in a fraudulent misrepresentation case involving parties of diverse citizenship who have facilitated the fraud through interstate commerce. Pursuant to the First Restatement, however, “[w]hen a person sustains loss by fraud, the place of wrong is where the loss is sustained, not" }, { "docid": "22999814", "title": "", "text": "that the district court should have disregarded the contractual choice of Kansas law and applied California law because, as the employee’s state of residence and performance under the contract, California has a materially greater interest in applying its law to invalidate the covenant not to compete, citing Restatement (Second) of Conflict of Laws § 187(2)(b) (1971 & Supp.1989). A diversity court must apply the choice-of-law rules of the forum state, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941), including the forum state’s rule as to whether a contractual choice-of-law provision is enforceable, see Interfirst Bank Clifton v. Fernandez, 853 F.2d 292, 294 (5th Cir.1988). In a case in which there was no contractual choice-of-law clause, the Kansas Supreme Court refused to follow the Second Restatement’s balancing of the competing policies of interested states and opted to adhere to the lex loci contrac-tus rule when it reflected Kansas public policy. St. Paul Surplus Lines Ins. Co. v. International Playtex, Inc., 245 Kan. 258, 777 P.2d 1259, 1267-70 (1989), cert. denied, — U.S. -, 110 S.Ct. 758, 107 L.Ed.2d 774 (1990); see also Missouri Pac. R.R. Co. v. Kansas Gas & Elec. Co., 862 F.2d 796, 798 n. 1 (10th Cir.1988). Although we could find no Kansas cases on point, we believe the Kansas courts would likewise refuse to weigh any conflict between Kansas’ and California’s laws and policies, if indeed there is conflict between them, and would apply Kansas law in this litigation as agreed to by the parties in their contract. Although the covenant at issue covers a broad geographic region, Equifax apparently is not attempting to enforce it to the full extent of its language. In similar circumstances, the Kansas Supreme Court has upheld the right to enforce an overly broad covenant to the extent reasonably necessary to carry out the protective intent of the parties. Foltz v. Struxness, 168 Kan. 714, 215 P.2d 133, 137-38 (1950). We think it likely would do so in the circumstances before us. Defendant challenges Equifax’ likelihood of success on the merits" }, { "docid": "15580698", "title": "", "text": "note that Kansas law, not Oklahoma law, governs construction of the covenant. A district court sitting pursuant to diversity jurisdiction must apply the choice-of-law rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). The well-established law in the state of Kansas is that the place of contract formation governs breach of contract actions. General Electric Capital Corp. v. Selph, 718 F.Supp. 1495, 1496 (D.Kan.1989). See also Dow Chemical Corp. v. Weevil-Cide Co., Inc., 630 F.Supp. 125, 127 (D.Kan.1986) (In Kansas, the lex loci con-tractus rule means the law where the contract is made governs the contract); Simms v. Metropolitan Life Ins. Co., 9 Kan.App.2d 640, 642, 685 P.2d 321, 324 (1984) (“Under Kansas law, choice of which state’s law is applicable to the construction of a contract depends on where the contract is made.”). The parties do not dispute that the covenant was executed by Shackelford in Kansas while he was employed by Heatron in Kansas; thus we will apply Kansas law in resolving the issues before the court. Under Kansas law, a noncompetition agreement is valid and enforceable where three conditions are met. First, the agreement must be a valid and enforceable contract under general principles of contract law. Eastern Distributing Co. v. Flynn, 222 Kan. 666, 670, 567 P.2d 1371, 1376 (1977); H & R Block, Inc. v. Lovelace, 208 Kan. 538, 543-544, 493 P.2d 205, 210 (1972). Defendant challenges the general validity of the contract as unsupported by good consideration. A noncompetition clause must be supported by valid consideration to be enforceable. Puritan-Bennett Corp. v. Richter, 8 Kan.App.2d 311, 313, 657 P.2d 589, 591 (1983); Evco Distributing, Inc. v. Brandau, 6 Kan.App.2d 53, 626 P.2d 1192 (1981). Under Kansas law, there is a rebuttable presumption that contracts are supported by consideration. Uarco, Inc. v. Eastland, 584 F.Supp. 1259, 1262 (D.Kan.1984) (citing Ferraro v. Fink, 191 Kan. 53, 379 P.2d 266 (1963)). Defendant suggests that the covenant lacks adequate consideration because after defendant signed the agreement, he “received nothing in return for signing" }, { "docid": "7650978", "title": "", "text": "Inc., 528 F.2d 1181 (10th Cir.1975). For a preliminary injunction to issue, plaintiff first must demonstrate a “reasonable probability of success” on the merits. Atchison, Topeka & Santa Fe Ry. Co. v. Lennen, 640 F.2d 255, 261 (10th Cir.1981). Plaintiff claims that there is a reasonable probability that it will succeed on its breach of contract claim against defendant because it is the assignee of a valid and enforceable noncompetition agreement that defendant executed. The court disagrees. The court first must determine which state’s substantive law governs interpretation of the employment contract. In a diversity action, the court must apply “the substantive law of the forum state.” Commercial Union Ins. v. John Massman Contracting, 713 F.Supp. 1403, 1404-05 (D.Kan.1989) (citations omitted). Because plaintiff seeks to enforce a covenant not to compete, this action is properly characterized as a contract action. Under its choice of law rules, Kansas courts follow the general rule “that the place .where the contract is made controls its interpretation.” Equifax Servs., Inc. v. Hitz, No. 91-3109, 1992 WL 163282, at *3 (10th Cir.1992) (citing Frasher v. Life Investors Ins. Co., 14 Kan.App.2d 583, 796 P.2d 1069, 1071 (1990), for rule of lex loci contractus). In the instant action, defendant testified that the last act necessary for contract formation, his signing of the 1990 employment contract, occurred when he executed the agreement in his Topeka, Kansas, office. This step finalized the employment agreement between defendant and Financial Guardian. Thus, Kansas law governs the contract’s interpretation. Defendant’s employment contract contains a choice of law provision. Section 11 provides that Missouri contract law shall govern. Kansas courts permit choice of law provisions to control if the transaction at issue has a “reasonable relation” to that state. National Equip. Rental, Ltd. v. Taylor, 225 Kan. 58, 587 P.2d 870 (1978); see also Atchison Casting Corp. v. Dofasco, Inc., 889 F.Supp. 1445, 1455 (D.Kan.1995). In determining if a valid employment contract exists between plaintiff and defendant, the court concludes that Missouri contract law governs. The parties' do not dispute that in January 1990, defendant executed an em ployment contract with Financial" }, { "docid": "23029451", "title": "", "text": "Policy does not afford coverage, it is entitled to summary judgment against Dyn Marine for breach of contract because the Agreement required that Seabulk be provided with coverage. A. A federal court resolving a diversity action is, absent a controlling constitutional provision or act of Congress, obliged to apply the substantive law of the state in which it sits, including the state’s choice-of-law rules. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); see also Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) (observing that forum state’s choice-of-law rules are substantive). This appeal arises from the Eastern District of Virginia and, pursuant to Virginia jurisprudence, an insurance policy is a contract to be construed in accordance with the principles applicable to all contracts. Graphic Arts Mut. Ins. Co. v. C.W. Warthen Co., 240 Va. 457, 397 S.E.2d 876, 877 (Va.1990). Questions concerning the validity, effect, and interpretation of a contract are resolved according to the law of the state where the contract was made. Woodson v. Celina Mut. Ins. Co., 211 Va. 423, 177 S.E.2d 610, 613 (1970) (applying principle of lex loci contractus). Under Virginia law, a contract is made when the last act to complete it is performed, and in the context of an insurance policy, the last act is the delivery of the policy to the insured. Metcalfe Bros., Inc. v. Am. Mut. Liab. Ins. Co., 484 F.Supp. 826, 829 (W.D.Va.1980). In this matter, the Policy was delivered to DynCorp, Dyn Marine’s parent, at its offices in Reston, Virginia. As the district court properly recognized, therefore, a judicial assessment of the Policy is governed by Virginia law. Under Virginia law, if policy language is clear and unambiguous, we do not apply rules of construction; rather, we give the language its plain and ordinary meaning and enforce the policy as written. P’ship Umbrella, Inc. v. Fed. Ins. Co., 260 Va. 123, 530 S.E.2d 154, 160 (2000). Conversely, when the policy language is ambiguous and the intentions of the parties cannot" }, { "docid": "3209376", "title": "", "text": "moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The court views the record and draws all favorable inferences in the light most favorable to the non-moving party. McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir.1998). Choice of law This is a diversity action filed pursuant to 28 U.S.C. § 1332. In a diversity action, we apply the substantive law of the forum state, including its choice of law rules. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 495-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); New York Life Ins. Co. v. K N Energy, Inc., 80 F.3d 405, 409 (10th Cir.1996). In this case, Kansas is the forum state. As to the contraet-based claims, Kansas choice of law rules honor an effective choice of law by contracting parties. Brenner v. Oppenheimer & Co., 273 Kan. 525, 44 P.3d 364, 374 (2002). As Pittsburg Pepsi’s contract claims are premised on the EBAs, which state that the terms and conditions of the EBAs shall be governed and interpreted by New York law, New York law applies to Pittsburg Pepsi’s breach of contract and third-party beneficiary claims. As to the claims sounding in tort (tortious interference, breach of fiduciary duty, and civil conspiracy), the parties agree the alleged injuries occurred in Kansas and that Kansas law applies to those claims. See Ling v. Jan’s Liquors, 237 Kan. 629, 703 P.2d 731, 735 (1985) (stating under Kansas choice of law rules, the applicable law for tort claims is the law of the state where the aggrieved party suffered injury). Breach of contract by PepsiCo Pittsburg Pepsi contends PepsF Co: (1) breached an express and implied-in-fact contract by failing to offer Pitts-burg Pepsi new product appointments; (2) breached an express and implied-in-fact contract by failing to enforce the TEP against Bottling Group; and (3) breached the implied covenant of good faith and fair dealing. The district court concluded that PepsiCo was entitled to summary judgment because the EBAs did not obligate PepsiCo to offer Pittsburg Pepsi new products or to enforce the TEP." }, { "docid": "3448885", "title": "", "text": "default. Thereupon, the court will schedule a telephone status conference to establish procedures consistent with this order. IT IS SO ORDERED. . Only the facts pertinent to the currently pending motions are set forth in detail here. These facts are either uncontroverted or set forth in the light most favorable to plaintiffs. . Only the procedural history pertinent to the currently pending motions, i.e., related to the truck’s title, is set forth here. . C & C’s objections, and plaintiffs’ responses to those objections, all assume that Kansas law governs plaintiffs' first five claims. The court questions the correctness of those assumptions. A federal court sitting in diversity must apply the substantive law of the state in which it sits, including that state’s choice of law rules. See Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Thus, this court looks to Kansas law to determine which state’s laws should be applied. Kansas adheres to the rule of lex loci delicti (the place of the injury) for claims involving tort law, see Ling v. Jan's Liquors, 237 Kan. 629, 634, 703 P.2d 731, 735 (1985), and the rule of lex loci contractus (the place where the contract was made) for claims involving contract law, see Simms v. Metropolitan Life Ins. Co., 9 Kan.App.2d 640, 642, 685 P.2d 321 (1984). It appears possible, then, that at least some of plaintiffs’ claims are governed by Nebraska law. The court finds, however, that it need not decide this issue in order to rule on C & C’s objections to plaintiffs’ motion for leave to amend because Nebraska law on the recovery of attorney fees and prejudgment interest is similar in all relevant respects to Kansas law on these issues. See Quinn v. Godfather's Invs., Inc., 217 Neb. 441, 444, 348 N.W.2d 893 (1984) (\"As a general rule of practice in this state, attorneys’ fees are allowed to the successful party in litigation only where such allowance is provided by statute.”); Land Paving Co. v. D.A. Const. Co., Inc., 215 Neb. 406, 407, 338 N.W.2d" }, { "docid": "18712791", "title": "", "text": "state’s choice of law rules. Klaxon Co. v. Slentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941). Thus, the court must look to Kansas law to determine which state’s laws should be applied. With respect to plaintiffs contract claims, the question is easily resolved. The parties agree that pursuant to the choice-of-law provision in the Atchison Agreement, Ontario or Canadian law applies. The court is bound to apply the forum state’s rule as to whether a contractual choice-of-law provision is enforceable. Equifax Servs., Inc. v. Hitz, 905 F.2d 1355, 1360 (10th Cir.1990). Kansas courts have in the past permitted choice of law provisions to control and the court sees no reason why Kansas would not give effect to the provision of the Atchison Agreement under the circumstances of this case. See id. (applied Kansas law as agreed to by the parties in their contract); O.V. Marketing Assoc., Inc. v. Carter, 766 F.Supp. 960, 964 (D.Kan.1991); Ritchie Enter, v. Honeywell Bull, Inc., 730 F.Supp. 1041, 1046 (D.Kan.1990) (citing National Equip. Rental, Ltd. v. Taylor, 225 Kan. 58, 587 P.2d 870 (Kan.1978)) (Kansas recognizes parties’ agreement for the law of another state to govern their rights and duties so long as the transaction at issue has “a reasonable relation” to that state). With respect to plaintiffs tort claims, Kansas follows the lex loci delicti approach, meaning that the law of the “place of the wrong” controls. Ling v. Jan’s Liquors, 237 Kan. 629, 634, 703 P.2d 731 (1985). Thus, the law of the state where the tort occurred applies. The “place of the wrong” is that place where the last event necessary to impose liability took place. Id. at 634-35, 703 P.2d 731; see also Restatement of Conflicts § 377 (1934). In a misrepresentation claim, the “last event” is the injury, so the law of the place of injury applies. Raymark Indus., Inc. v. Stemple, 714 F.Supp. 460, 464 (D.Kan.1988). When a person sustains a loss by misrepresentation, “the place of wrong is where the loss is sustained,” not where the misrepresentations were made. Id." }, { "docid": "21387098", "title": "", "text": "law governs plaintiffs claims. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (in diversity actions, federal court must apply the substantive law of the forum state). In making this determination, the court first applies the choice-of-law rules of the state in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Kansas adheres to a lex loci delicti approach, meaning that the law of the “place of the wrong” controls. Ling v. Jan’s Liquors, 237 Kan. 629, 703 P.2d 731, 735 (1985). The “place of the wrong” is the location in which the last event necessary to impose liability occurred. Id. Neither side addresses the choice-of-law issue. Defendants merely assume in their pleadings that Kansas law is applicable. Plaintiff, although noting that Clinical is a Kansas corporation and that TriSource is a Missouri corporation with its principal office in Missouri, also assumes that Kansas law governs this case. In Ling, the Kansas Supreme Court held that in an action seeking “damages for injuries sustained in Kansas which were the result of a negligent act in another state, the liability of the defendant is to be determined by the laws of this state.” Id. 703 P.2d at 735. The supreme court made clear in Volt Delta Resources, Inc. v. Devine, 241 Kan. 775, 740 P.2d 1089, 1092-93 (1987), that the Ling holding extends to all tortious conduct, both intentional and otherwise. With respect to contractual-based claims, lex loci contractus is the governing theory meaning that the law of the state in which the contract was made controls the interpretation of the contract. Safeco Ins. Co. v. Allen, 262 Kan. 811, 941 P.2d 1365, 1372 (1997). All relevant conduct in this ease transpired within Kansas borders. Wolf Creek and Clinical are both located in this forum and conduct all business here. Although TriSource performed its medical review analysis from its Missouri office, it notified plaintiff of its findings at his Kansas apartment and directed its conclusions to Wolf Creek’s Kansas facility. Under" }, { "docid": "21866178", "title": "", "text": "1310, 1315-16 (4th Cir.1993). IV. Discussion A. Choice of Law As a threshold matter, the parties dispute which state’s law should apply to the Court’s interpretation of the insurance policy at issue in this case. Plaintiff NAS maintains that the law of North Carolina should apply, citing Collins & Aikman Corp. v. Hartford Accident & Indem. Co., 335 N.C. 91, 436 S.E.2d 243, 245 (1993) and section 58-3-1 of the North Carolina General Statutes. Defendant Lumber contends that the law of South Carolina should apply, citing the principle of lex loci contractus, Fortune Ins. Co. v. Owens, 351 N.C. 424, 526 S.E.2d 463 (2000) and Roomy v. Allstate Ins. Co., 256 N.C. 318, 123 S.E.2d 817 (1962). The Court finds that the law of South Carolina should properly be applied to interpret the CGL policy at issue in this case. A federal district court sitting in diversity must apply the choice of law rules of forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In deciding which law should govern interpretation of a contract, North Carolina follows the principle of lex loci contractus, which provides that the law of the state where the last act occurred to form a binding contract should apply. Fortune Ins. Co., 351 N.C. at 428, 526 S.E.2d at 465-66; Roomy, 256 N.C. at 322, 123 S.E.2d at 820. Here, the last act to form the binding contract of insurance was Lumber’s delivery of the CGL policy to PWP at its corporate headquarters in Greenville, South Carolina, see Gyscek Aff. ¶ 2, which would indicate that the law of South Carolina should apply. NAS asserts that Collins & Aikman interprets section 58-3-1 to provide an exception to the rule of lex loci contractus where the “interests” being insured have a significant connection to North Carolina. However, the Court finds Collins & Aik-man inapposite to the facts of this case. The Collins & Aikman case involved an insurance policy, delivered to the insured in California, on a fleet of commercial vehicles, 97 of 102 of which were" }, { "docid": "10649810", "title": "", "text": "have connections to California. For this reason, the locus of operative facts lies in Georgia, not California. Factors five and six are neutral. There is no indication that service of process will be more difficult in Georgia than California. Also, all the parties are established companies with substantial means. Factor seven, however, weighs against transfer. As a court sitting in diversity jurisdiction, this Court must apply Georgia’s choice-of-law rules. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Georgia follows lex loci contractus. Boardman Petroleum, Inc. v. Federated Mut. Ins. Co., 135 F.3d 750, 752 (11th Cir.1998). Under lex loci contractus, contracts are governed by the law of the place where they were made. Id. Further, “[u]nder Georgia law, an insurance contract is ‘made’ where it is delivered.” Id. As discussed above, the American Casualty and Continental policies were delivered in Georgia. The Great Divide, Allied World, and Westchester policies were delivered to IMG in Ohio. None of the policies were delivered in California. Thus, either Georgia or Ohio law will govern interpretation of the policies at issue in this case. The Defendants, however, argue that California tort law will apply to determine CLC’s liability for violations of the right of publicity in the Underlying Actions. Regardless of the law applicable in the Underlying Actions, this Court must apply Georgia and Ohio contract law to this coverage dispute. Thus, the forum’s familiarity with the underlying law weighs against transfer to California. Here, CLC brought this action in Georgia. Typically, there is a “strong presumption against disturbing plaintiffs’ initial forum choice.” SME Racks, 382 F.3d at 1100. The Defendants, however, contend that CLC’s choice of forum is not entitled to deference because the California Coverage Action was filed first. The California Coverage Action, however, involves different parties and different insurance contracts. Although the National Union policies may share similarities with the Defendants’ policies, the National Union policies are completely separate contracts between different parties. The policies issued by the Defendants were delivered in either Georgia or Ohio. The National Union policies" }, { "docid": "15580697", "title": "", "text": "sound discretion of the trial court and will be set aside only if the ruling is based on an error of law or constitutes an abuse of discretion. Kenai Oil and Gas, Inc. v. Dep’t of Interior, 671 F.2d 383, 385 (10th Cir.1982). The Tenth Circuit has adopted a modified interpretation of the “likelihood of success” requirement. If the first three requirements for a preliminary injunction are satisfied, then the movant can establish the fourth requirement, likelihood of success, by merely showing questions going to the merits so serious, substantial, difficult and doubtful, as to make the issues fair ground for litigation and deserving of more deliberate investigation. City of Chanute v. Kansas Gas and Electric Co., 754 F.2d 310 (10th Cir.1985); Otero Sav. & Loan Ass’n v. Federal Reserve Bank, 665 F.2d 275 (10th Cir.1981). A. Substantial Likelihood of Success on the Merits. Heatron seeks to enjoin Shackelford from breaching the covenant not to compete. Specifically, Heatron seeks a preliminary injunction prohibiting Shackelford from continuing his employment with Delta. As a threshold matter, we note that Kansas law, not Oklahoma law, governs construction of the covenant. A district court sitting pursuant to diversity jurisdiction must apply the choice-of-law rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). The well-established law in the state of Kansas is that the place of contract formation governs breach of contract actions. General Electric Capital Corp. v. Selph, 718 F.Supp. 1495, 1496 (D.Kan.1989). See also Dow Chemical Corp. v. Weevil-Cide Co., Inc., 630 F.Supp. 125, 127 (D.Kan.1986) (In Kansas, the lex loci con-tractus rule means the law where the contract is made governs the contract); Simms v. Metropolitan Life Ins. Co., 9 Kan.App.2d 640, 642, 685 P.2d 321, 324 (1984) (“Under Kansas law, choice of which state’s law is applicable to the construction of a contract depends on where the contract is made.”). The parties do not dispute that the covenant was executed by Shackelford in Kansas while he was employed by Heatron in Kansas; thus we will apply" }, { "docid": "22999813", "title": "", "text": "Nevertheless, the parties themselves have agreed upon the proper balance between the competing state policies by choosing Kansas law to govern their contract. II There are four prerequisites for the grant of a preliminary injunction: “(1) substantial likelihood that the mov-ant will eventually prevail on the merits; (2) a showing that the movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, would not be adverse to the public interest.” Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir.1980). We will reverse the district court’s grant of a preliminary injunction only for abuse of discretion. Id. A On the issue of likelihood of success on the merits, defendant argues that the district court erred in applying Kansas law to determine the validity of the covenant not to compete. Defendant contends that the covenant is unenforceable in California by virtue of Cal.Bus. & Prof.Code § 16600; he argues that the district court should have disregarded the contractual choice of Kansas law and applied California law because, as the employee’s state of residence and performance under the contract, California has a materially greater interest in applying its law to invalidate the covenant not to compete, citing Restatement (Second) of Conflict of Laws § 187(2)(b) (1971 & Supp.1989). A diversity court must apply the choice-of-law rules of the forum state, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941), including the forum state’s rule as to whether a contractual choice-of-law provision is enforceable, see Interfirst Bank Clifton v. Fernandez, 853 F.2d 292, 294 (5th Cir.1988). In a case in which there was no contractual choice-of-law clause, the Kansas Supreme Court refused to follow the Second Restatement’s balancing of the competing policies of interested states and opted to adhere to the lex loci contrac-tus rule when it reflected Kansas public policy. St. Paul Surplus Lines Ins. Co. v. International Playtex, Inc., 245 Kan. 258, 777 P.2d" }, { "docid": "10930552", "title": "", "text": "of the forum state. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941); Fagan v. John Hancock Mutual Life Ins. Co., 200 F.Supp. 142, 143 (D.Kan. 1961). Plaintiff characterizes this suit as a tort action — contending that it wishes merely to enforce the injured workers’ initial right to recover against the manufacturer/defendants for their personal injuries. In tort actions, Kansas follows the rule of lex loci delicti — the law of the state where the tort occurred. Ling v. Jan’s Liquors, 237 Kan. 629, 634, 703 P.2d 731, 735 (1985). Plaintiff further notes that the workers were injured in Wisconsin rather than in Kansas. On the other hand, the insurer/defendants suggest that, at least as to them, the suit is more in the nature of a contract action. Plaintiff is attempting to enforce the insurer/defendants’ contracts of insurance with the manufacturer/defendants. In contract actions, Kansas applies the rule of lex loci contractus — the law of the state in which the contract is made. First National Bank of Beaver, Oklahoma v. Hough, 643 F.2d 705, 706 (10th Cir.1981). In Aetna Casualty & Surety Co. v. Gentry, 191 Okl. 659, 132 P.2d 326, 331 (1942), the Oklahoma Supreme Court applied the lex loci contractus rule in determining that insurance contracts executed in Kansas should be enforced in accordance with the Kansas statute under which they were written, rather than the contrary Oklahoma law. Although the state in which these insurance contracts were executed is not clear from the complaint, it would no doubt be either the manufacturer/defendants’ home state (Kansas) or the insurer/defendants’ home states (none of which was Wisconsin). The insurer/defendants thus contend that the Wisconsin direct action statute is irrelevant to this case. The parties have not extensively briefed this choice of law question. Certainly, neither position is legally frivolous. We see no need to resolve this dispute at the present time, however, since the ultimate result would be the same under either view. For purposes of this motion, we will simply assume that Wisconsin law would apply" }, { "docid": "18712790", "title": "", "text": "of assets to Dominion. Atchison also contends that Dofaseo intentionally, recklessly, carelessly, or without due care, made misrepresentations of material fact about closing the Hamilton foundry and preserving the value of the assets. Atchison contends Dofaseo misrepresented that: (1) it would close the Hamilton foundry by October 31, 1992; (2) neither it nor its Successors or assigns would make or accept any new orders for castings of the kind which can be made utilizing the patterns; and (3) it would use reasonable efforts to obtain from all bidders for any of the assets and all other parties all confidential and proprietary information and all trade secrets concerning the assets sold to Atchison, indicating the assets were in fact proprietary and that their value would be preserved. Dofaseo has moved for summary judgment on all of plaintiffs claims. 1. Choice of Law As an initial matter, the court must determine what law applies to plaintiffs claims. A federal court sitting in diversity must apply the substantive law of the state in which it sits, including that state’s choice of law rules. Klaxon Co. v. Slentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941). Thus, the court must look to Kansas law to determine which state’s laws should be applied. With respect to plaintiffs contract claims, the question is easily resolved. The parties agree that pursuant to the choice-of-law provision in the Atchison Agreement, Ontario or Canadian law applies. The court is bound to apply the forum state’s rule as to whether a contractual choice-of-law provision is enforceable. Equifax Servs., Inc. v. Hitz, 905 F.2d 1355, 1360 (10th Cir.1990). Kansas courts have in the past permitted choice of law provisions to control and the court sees no reason why Kansas would not give effect to the provision of the Atchison Agreement under the circumstances of this case. See id. (applied Kansas law as agreed to by the parties in their contract); O.V. Marketing Assoc., Inc. v. Carter, 766 F.Supp. 960, 964 (D.Kan.1991); Ritchie Enter, v. Honeywell Bull, Inc., 730 F.Supp. 1041, 1046 (D.Kan.1990) (citing National" }, { "docid": "5908482", "title": "", "text": "v. Honeywell Inc., 104 F.3d 1215, 1219 (10th Cir.1997). The choice of law is determined by the conflict of laws rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The parties have not addressed the choice-of-law issue in the briefs before the court. “Where the parties fail to raise the issue of choice of law, the Court need not raise the issue suet sponte, and the parties are deemed to have acquiesced in the application of the law of the forum.” Keles v. Yale Univ., 889 F.Supp. 729, 733 (S.D.N.Y.1995), affd, 101 F.3d 108, 1996 WL 115329 (2d Cir.1996); see also, GBJ Corp. v. Eastern Ohio Paving Co., 139 F.3d 1080, 1085 (6th Cir.1998) (stating that the court “need not address choice of law questions sua sponte ”). The court is not obliged to investigate whether a conflict of law issue exists, when the parties present no conflict between the laws of potentially interested states. In Kansas, furthermore, “[t]he general rule is that the law of the forum applies unless it is expressly shown that a different law governs, and in case of doubt, the law of the forum is preferred.” Shutts v. Phillips Petroleum Co., 235 Kan. 195, 221, 679 P.2d 1159, 1181 (1984), rev’d in part on other grounds, 472 U.S. 797, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985); Grimmett v. Burke, 21 Kan.App.2d 638, 652, 906 P.2d 156, 166 (1995); Gray v. Amoco Prod. Co., 1 Kan. App.2d 338, 341, 564 P.2d 579, 583 (1977), rev’d in part on other grounds, 223 Kan. 441, 573 P.2d 1080 (1978); see also, Koch v. Koch Indus., Inc., 2 F.Supp.2d 1416, 1420 n. 3 (D.Kan.1998) (quoting Gray v. Amoco Production Co., 1 Kan.App.2d 338, 564 P.2d 579). Accordingly, the court applies the law of Kansas. “Kansas has substantial case law authorizing the piercing of a corporate veil if to do otherwise would work an injustice on third parties.” Perneo, Inc. v. Kansas Dep’t of Revenue, 258 Kan. 717, 723, 907 P.2d 863, 867 (1995). Kansas courts" } ]

[ { "docid": "922894", "title": "", "text": "that the judge ordered an investigation, however, and did not rule on petitioner’s application until it was completed, was not in error. Petitioner also asserts that he was eligible for suspension of deportation when he filed his application because his deportation would cause “extreme hardship” within the meaning of section 244(a)(1). Significantly, the petitioner cites no cases to support his assertion. The Supreme Court has stated that the term “extreme hardship” is to be defined in the first instance by the Attorney General and his delegates. INS v. Wang, 450 U.S. 139, 140, 101 S.Ct. 1027, 1029, 67 L.Ed.2d 123 (1981). This court may overturn the Board’s determination on this issue only if there was an abuse of discretion. Villena v. INS, 622 F.2d 1352, 1357 (9th Cir. 1980); Banks v. INS, 594 F.2d 760, 762 (9th Cir. 1979). It is well settled that economic detriment by itself does not constitute “extreme hardship.” Villena v. INS, 622 F.2d at 1358; Pelaez v. INS, 513 F.2d 303, 304-05 (5th Cir. 1975); Kasravi v. INS, 400 F.2d 675, 676 (9th Cir. 1968); Kwang Shick Myung v. INS, 368 F.2d 330, 331 (7th Cir. 1966). The Board has determined that the petitioner’s situation does not amount to extreme hardship; we cannot say that this determination was an abuse of discre tion. Neither the Board nor the immigration judge erred in finding the petitioner ineligible for a suspension of deportation. III. Petitioner’s final argument is that the Service is estopped from deporting him because of the delays involved in both of its investigations. Petitioner must show that the Service’s conduct amounted to affirmative misconduct. INS v. Hibi, 414 U.S. 5, 8-9, 94 S.Ct. 19, 21-22, 38 L.Ed.2d 7 (1973); Santiago v. INS, 526 F.2d 488 (9th Cir. 1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976). Moreover, he must show that the misconduct was prejudi cial to him. Shon Ning Lee v. INS, 576 F.2d 1380, 1382 (9th Cir. 1978); Sun Il Yoo v. INS, 534 F.2d 1325, 1329 (9th Cir. 1976). Unexplained delays by the Service in its administrative" } ]

[ { "docid": "745085", "title": "", "text": "staff attorney, “did not take any exception to my interpretation and that it is his understanding that prior to September 1, 1976 upper tier oil may be computed on a tract-by-tract basis, provided the unit meets the test of the prior regulations relating to implementation of enhanced recovery techniques and significant alteration of producing patterns.” The risk lingered because “while Mr. Luedtke agrees with my interpretation of the August 20, 1976 clarifications as applied to Hawkins, his views are not official FEA interpretations.” PX 236 at 4 (Memorandum from Fred W. File to Fred M. Perkins, October 1, 1976) (emphasis added). . Schweiker v. Hansen, 450 U.S. 785, 788, 101 S.Ct. 1468, 1470, 67 L.Ed.2d 685 (1981) (“This court has never decided what type of conduct by a government employee will estop the government from insisting upon compliance with valid regulations governing the distribution of welfare benefits.”); Montana v. Kennedy, 366 U.S. 308, 315, 81 S.Ct. 1336, 1341, 6 L.Ed.2d 313 (1961) (“[W]e need not stop to inquire whether, as some lower courts have held, there may be circumstances in which the United States is estopped to deny citizenship because of conduct of its officials.”). Interestingly, the Court in Schweiker v. Hansen declined to estop the government from denying Social Security benefits to an applicant who had been misinformed by a government agent, writing that “at worst, [the agent’s] conduct did not cause respondent to take action, or fail to take action, that respondent could not correct at any time.” 450 U.S. at 789, 101 S.Ct. at 1471 (citations omitted). So, too, could Exxon have corrected its accounting practices at the Hawkins Field at any time. . See, e.g., Portmann v. United States, 674 F.2d 1155 (7th Cir.1982); Santiago v. Immigration and Naturalization Service, 526 F.2d 488 (9th Cir.1975); United States v. Lazy FC Ranch, 481 F.2d 985 (9th Cir.1973); cf. Investors Research Corp. v. SEC, 628 F.2d 168, 174 n. 34 (D.C.Cir.1980) (“The fundamental principle of equitable estoppel applies to government agencies, as well as private parties.”). Courts have employed various devices to get around the traditional rule, such" }, { "docid": "12612625", "title": "", "text": "employee would estop the government from insisting upon compliance with a valid regulation. Id. 450 U.S. at 788, 101 S.Ct. at 1470; see also Montana v. Kennedy, 366 U.S. 308, 314-315, 81 S.Ct. 1336, 1340-41, 6 L.Ed.2d 313 (1961) and United States Immigration and Naturalization Service v. Hibi, 414 U.S. 5, 8-9, 94 S.Ct. 19, 21-22, 38 L.Ed.2d 7 (1973). Thus, the Court’s opinions leave open the possibility that some kind of affirmative misconduct might estop the government. The Court in Hansen noted the existence of conflicting lines of authority regarding equitable defenses against the government. While it did not disapprove the other authority, it aligned itself with one of these approaches. Id. 450 U.S. at 788, 101 S.Ct. at 1470. Lacking any guidance from Sixth Circuit decisions, this Court considers that this approved line of authority offers the best guidance regarding the law of equitable - defenses against the government. This area of law is most fully developed in cases decided by the Ninth Circuit, one of whose cases was cited with approval by the Supreme Court in Hansen. This Court turns to consider the law as developed in Ninth Circuit decisions. The rule has emerged in Ninth Circuit cases that the government can be estopped only on the basis of affirmative misconduct. Santiago v. Immigration and Naturalization Service, 526 F.2d 488, 491 (9th Cir.1975), cert. denied 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976); California Pacific Bank v. Small Business Admin., 557 F.2d 218, 224 (9th Cir.1977); United States v. Ruby Co., 588 F.2d 697 (9th Cir.1978); Vickars-Henry Corp. v. Bd. of Governors of the Federal Reserve System, 629 F.2d 629, 635 (9th Cir.1980); see also Sweeten v. United States Dept. of Agr. Forest Service, 684 F.2d 679 (10th Cir.1982). As it has been developed in the cases, the “affirmative misconduct” limitation is two-pronged. Hansen v. Harris, 619 F.2d 942 (2d Cir.1980), rev’d sub. nom. Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981) (Friendly, J. dissenting). The first prong — that estoppel against the government be based upon affirmative conduct —" }, { "docid": "22698755", "title": "", "text": "in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error. Because this is not such a case, I dissent from the majority’s summary reversal of the judgment of the Court of Appeals, and would instead grant the petition and set the case for plenary consideration. The issue here is important, not only in economic terms to respondent Hansen, but in constitutional terms as well. The question of when the Government may be equitably estopped has divided the distinguished panel of the Court of Appeals in this case, has received inconsistent treatment from other Courts of Appeals, and has been the subject of considerable ferment. See, e. g., Corniel-Rodriguez v. INS, 532 F. 2d 301 (CA2 1976); United States v. Lazy FC Ranch, 481 F. 2d 985 (CA9 1973); United States v. Fox Lake State Bank, 366 F. 2d 962 (CA7 1966); Walsonavich v. United States, 335 F. 2d 96 (CA3 1964); Simmons v. United States, 308 F. 2d 938 (CA5 1962); Semaan v. Mumford, 118 U. S. App. D. C. 282, 335 F. 2d 704 (1964); Eichelberger v. Commissioner of Internal Revenue, 88 F. 2d 874 (CA5 1937). See generally K. Davis, Administrative Law of the Seventies § 17.01 (1976); Note, Equitable Estoppel of the Government, 79 Colum. L. Rev. 551 (1979). Indeed, the majority today recognizes that “[t]his Court has never decided what type of conduct by a Government employee will estop the Government from insisting upon compliance with valid regulations governing the distribution of welfare benefits.” Ante, at 788. The majority goes on to suggest that estoppel may be justified in some circumstances. Yet rather than address the issue in a compre hensive fashion, the Court simply concludes that this is not such a case. The apparent message of today’s decision — that we will know an estoppel when we see one — provides inadequate guidance to the lower courts in an area of the law that, contrary to the majority’s view, is far from settled. Indeed, the majority’s attempt to distinguish conflicting decisions of other" }, { "docid": "11821472", "title": "", "text": "v. INS, 532 F.2d 301, 306-07 (2d Cir. 1976); de Hernandez v. INS, 498 F.2d 919, 921 (9th Cir. 1974) (per curiam). Other decisions have held against the Government on what amounts to an estoppel theory without actually mentioning estoppel. See Mashi v. INS, 585 F.2d 1309, 1315 (5th Cir. 1978); Tejeda v. INS, 346 F.2d 389, 392-94 (9th Cir. 1965); McLeod v. Peterson, 283 F.2d 180, 187 (3d Cir. 1960). Although this “reliance-on-misconduct” rule serves the useful function of balancing the interest of the United States as a sovereign controlling its borders against the interest of individuals, it has led to unproductive efforts to define “affirmative misconduct,” Santiago v. INS, 526 F.2d 488, 492-93 (9th Cir. 1975) (in banc), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976); Note, Equitable Estoppel of the Government, 79 Colum.L.Rev. 551, 559 (1979). For example, probably because the Ninth Circuit held that delay by the INS amounted to affirmative misconduct, Miranda v. INS, 638 F.2d 83, 84 (9th Cir. 1980), the Supreme Court vacated the judgment and remanded the case for reconsideration in light of Hansen, - U.S. -, 102 S.Ct. 81, 70 L.Ed.2d 77 (1981). On the other hand, failure to perform a legally required task has been found to amount to affirmative misconduct. Corniel-Rodriguez v. INS, 532 F.2d at 306-07. Nevertheless, in most of the cases where estoppel is raised, the decision has turned on whether affirmative misconduct occurred, the court usually finding that it did not. See Oki v. INS, 598 F.2d 1160, 1161-62 (9th Cir. 1979) (per curiam); Hamadeh v. INS, 343 F.2d 530, 532-33 (7th Cir.), cert. denied, 382 U.S. 838, 86 S.Ct. 85, 15 L.Ed.2d 80 (1965). The facts in a number of these cases, however, suggest that it would have been at least equally sound for the court to decide estoppel did not apply on the ground that no reasonable reliance occurred, that is, that the Government’s conduct was not intended nor reasonably could have been expected to induce reliance. See Wong Kwok Sui v. Boyd, 285 F.2d 572, 574-75 (9th Cir. 1960)" }, { "docid": "6474915", "title": "", "text": "Mrs. Hansen’s hand? The last of the series of Supreme Court decisions is INS v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973) (per curiam). This involved a Filipino who applied for United States citizenship pursuant to the Nationali ty Act of 1940, which provided for naturalization of non-citizens who, like Hibi, served honorably in the United States Armed Forces during World War II. Although Hibi applied 17 years after the expiration of the time limit established by Congress under the Act, he argued that the Government was estopped from relying on the limit because of its “failure to advise him, during the time he was eligible, of his right to apply for naturalization,” and its failure to post naturalization officials in the Philippines. Id. at 7-8, 94 S.Ct. at 21-22. The Court declined to apply estoppel: While the issue of whether “affirmative misconduct” on the part of the Government might estop it from denying citizenship was left open in Montana v. Kennedy, 366 U.S. 308, 314, 315 [, 81 S.Ct. 1336,1340,1341, 6 L.Ed.2d 313] (1961), no conduct of the sort there adverted to was involved here. We do not think that the failure to fully publicize the rights which Congress accorded under the Act of 1940, or the failure to have stationed in the Philippine Islands during all of the time those rights were available an authorized naturalization representative, can give rise to an estoppel against the Government. Id. at 8-9, 94 S.Ct. at 21-22. The sole Second Circuit authority giving any shade of comfort to the plaintiff is Corniel-Rodriquez v. INS, 532 F.2d 301 (2 Cir. 1976). This involved a “young and naive” alien who sought admission to the United States as a “special immigrant”. Special immigrants are not subject to the general immigration quotas, and include immigrants from the western hemisphere holding a previously obtained work permit from the Secretary of Labor. Children of individuals who, like plaintiff’s father, had already obtained special immigrant visas were not required to have a work permit. By statute, however, they must not be married either at time" }, { "docid": "6474948", "title": "", "text": "justify estoppel, although it continued to reserve decision on the resolution of this issue. Thus, the principle of these decisions is that courts must not apply the private law notion of estoppel to the Government and that the more restrictive circumstances under which estoppel of the Government might arise remain to be articulated. The response of the lower courts, while uncertain at times, has been generally consistent with this view. While emphatic rejections of estoppel against the Government occasionally appear in passing phrases, see Dix v. Rollins, 413 F.2d 711, 716 (8th Cir. 1969); Udall v. Oelschlaeger, 389 F.2d 974, 977 (D.C.Cir.), cert. denied, 392 U.S. 909, 88 S.Ct. 2056, 20 L.Ed.2d 1367 (1968), no court of appeals has ruled that estoppel would be unavailable in all circumstances. On the contrary, no fewer than eight circuits, including this one, have stated that there are some circumstances in which the Government will be estopped. Corniel-Rodriguez v. INS, 532 F.2d 301 (2d Cir. 1976); Walsonavich v. United States, 335 F.2d 96 (3d Cir. 1964); Tuck v. Finch, 430 F.2d 1075 (4th Cir. 1970); Simmons v. United States, 308 F.2d 938, 945 (5th Cir. 1962); United States v. Fox Lake State Bank, 366 F.2d 962 (7th Cir. 1966); United States v. Wharton, 514 F.2d 406 (9th Cir. 1975); Massaglia v. Commissioner, 286 F.2d 258, 262 (10th Cir. 1961) (dictum); Semaan v. Mumford, 335 F.2d 704, 706 (D.C. Cir. 1964). The principle is particularly well-established in this Circuit. See Corniel-Rodriguez, supra; Miller v. United States, 500 F.2d 1007 (2d Cir. 1974); Podea v. Acheson, 179 F.2d 306 (2d Cir. 1950) (conclusion that plaintiff’s waiver of citizenship was not binding for reason of duress supported by erroneous nature of Government advice to plaintiff); Tonkonogy v. United States, 417 F.Supp. 78 (S.C.N.Y.1976). These decisions have not purported to evolve a standard for determining when the Government is estopped. That task requires further analysis of the cases, those that have upheld an estoppel and those that have not. In Merrill the Supreme Court refused to apply the private law notion of estoppel to the Government because the" }, { "docid": "485375", "title": "", "text": "at 421-22, 110 S.Ct. 2465 (citing Heckler, 467 U.S. at 60, 104 S.Ct. 2218; INS v. Miranda, 459 U.S. 14, 19, 103 S.Ct. 281, 74 L.Ed.2d 12 (1982); Schweiker v. Hansen, 450 U.S. 785, 788, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981); INS v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973)); see Montana v. Kennedy, 366 U.S. 308, 314-15, 81 S.Ct. 1336, 6 L.Ed.2d 313 (1961); Tefel v. Reno, 180 F.3d 1286, 1302-03 (11th Cir.1999); Fano v. O’Neill, 806 F.2d 1262, 1265 (5th Cir.1987). Accordingly, all federal circuit courts of appeal require a showing of affirmative misconduct on the part of the government before the doctrine of estoppel may be invoked against a governmental entity. See Tefel, 180 F.3d at 1303 (citing United States v. Javier Angueira, 951 F.2d 12, 16 (1st Cir.1991); Drozd v. INS, 155 F.3d 81, 90 (2d Cir.1998); Fredericks v. Commissioner, 126 F.3d 433, 438 (3d Cir.1997); United States v. Agubata, 60 F.3d 1081, 1083 (4th Cir.1995), cert. denied, 516 U.S. 1120, 116 S.Ct. 929, 133 L.Ed.2d 857 (1996); Fano, 806 F.2d at 1265; United States v. Guy, 978 F.2d 934, 937 (6th Cir.1992); Edgewater Hosp., Inc. v. Bowen, 857 F.2d 1123, 1138 (7th Cir.1988), amended on other grounds, 866 F.2d 228 (7th Cir.1989); United States v. Schoenborn, 860 F.2d 1448, 1451 (8th Cir.1988); Watkins v. United States Army, 875 F.2d 699, 707 (9th Cir.1989), cert. denied, 498 U.S. 957, 111 S.Ct. 384, 112 L.Ed.2d 395 (1990); Penny v. Giuffrida, 897 F.2d 1543, 1547 (10th Cir.1990); LaRouche v. Federal Election Comm’n, 28 F.3d 137, 142 (D.C.Cir.1994); Henry v. United States, 870 F.2d 634, 637 (Fed.Cir.1989)). Thus, “courts have applied the elements of traditional equitable estoppel against the government rather narrowly.” Marine Shale Processors, 81 F.3d at 1349. The Fifth Circuit has noted that “to state a cause of action for estoppel against the government, a private party must allege more than mere negligence, delay, inaction, or failure to follow an internal agency guideline.” Fano, 806 F.2d at 1265; see Moosa, 171 F.3d at 1003; REW Enters., Inc. v. Premier Bank, N.A.," }, { "docid": "6474949", "title": "", "text": "430 F.2d 1075 (4th Cir. 1970); Simmons v. United States, 308 F.2d 938, 945 (5th Cir. 1962); United States v. Fox Lake State Bank, 366 F.2d 962 (7th Cir. 1966); United States v. Wharton, 514 F.2d 406 (9th Cir. 1975); Massaglia v. Commissioner, 286 F.2d 258, 262 (10th Cir. 1961) (dictum); Semaan v. Mumford, 335 F.2d 704, 706 (D.C. Cir. 1964). The principle is particularly well-established in this Circuit. See Corniel-Rodriguez, supra; Miller v. United States, 500 F.2d 1007 (2d Cir. 1974); Podea v. Acheson, 179 F.2d 306 (2d Cir. 1950) (conclusion that plaintiff’s waiver of citizenship was not binding for reason of duress supported by erroneous nature of Government advice to plaintiff); Tonkonogy v. United States, 417 F.Supp. 78 (S.C.N.Y.1976). These decisions have not purported to evolve a standard for determining when the Government is estopped. That task requires further analysis of the cases, those that have upheld an estoppel and those that have not. In Merrill the Supreme Court refused to apply the private law notion of estoppel to the Government because the Government’s policies, unlike those of a private party, have general social significance. These policies, the Court reasoned, should not be at the mercy of an errant government official. When a private organization is involved, the only consideration in deciding an estoppel question is the relative equities between that organization and the party whom it has misled. But society has an overarching interest in the substantive policies established by its government. That interest justifies (though reasonable minds might differ as to whether it compels) adherence to those policies, even when the reason a person finds himself outside the scope of the pertinent policy stems in part from conduct of a government official. Even then, estoppel might be available, as the Supreme Court indicated in Montana and we held in Corniel-Rodriguez, if the governmental conduct on which the claimant relied was affirmative misconduct. See United States v. Lazy FC Ranch, 481 F.2d 985 (9th Cir. 1973); cf. Semaan v. Mumford, supra (Government estopped from denying employee permanent status after having misled him to believe that such status" }, { "docid": "7633690", "title": "", "text": "Negotiations on the remaining loss continued thereafter for several months until the parties had reached an impasse. Given these facts, we find that the conduct of the Agency and its agent were sufficient to estop the Government from asserting the untimely filing as a defense in any manner. Although it is axiomatic that “[m]en must turn square corners when they deal with the Government,” Rock Island, Arkansas & Louisiana Railroad Company v. United States, 254 U.S. 141, 143, 41 S.Ct. 55, 56, 65 L.Ed. 188 (1920), the “public has an interest in seeing its government deal carefully, honestly and fairly with its citizens.” United States v. Wharton, 514 F.2d 406, 412-13 (9th Cir. 1975). We emphasize that our holding is of necessity limited to the unique circumstances of this case. In light of the Supreme Court’s recent opinion in Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981) (per curiam), it does appear that generally oral misinformation provided by a government employee does not provide a basis for estoppel against the Government. See, e.g., Cheers v. Secretary of HEW, 610 F.2d 463 (7th Cir. 1979), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980). Beyond that, however, it is far from clear when the Government may be estopped. Compare Corniel-Rodriguez v. INS, 532 F.2d 301 (2nd Cir. 1976); United States v. Lazy FC Ranch, 481 F.2d 985 (9th Cir. 1973); United States v. Fox Lake State Bank, 366 F.2d 962 (7th Cir. 1966); Walsonavich v. United States, 335 F.2d 96 (3d Cir. 1964); Simmons v. United States, 308 F.2d 938 (5th Cir. 1962); Semaan v. Mumford, 118 U.S.App.D.C. 282, 335 F.2d 704 (1964); Eichelberger v. Commissioner of Internal Revenue, 88 F.2d 874 (5th Cir. 1937), cited in Schweiker v. Hansen, 450 U.S. 785, 791, 101 S.Ct. 1468, 1472, 67 L.Ed.2d 685 (1981) (Marshall, J., dissenting). Neither of the parties has attempted to address or articulate any general standard and, therefore, resolution of the issue on a broad basis appears inappropriate in this case. Thus, we limit our holding to the facts of this" }, { "docid": "22957377", "title": "", "text": "at least with the expectation, that it will be acted upon by the other party, and, thus relying, he must be led to act upon it. 5. He must in fact act upon it in such a manner as to change his position for the worse .... . See 450 U.S. at 788-89 n.4, 101 S.Ct. at 1471 n.4. Among the cases distinguished by the Schweiker Court were United States v. Lazy FC Ranch, 481 F.2d 985 (9th Cir. 1973); United States v. Fox Lake State Bank, 366 F.2d 962 (7th Cir. 1966); Semaan v. Mumford, 335 F.2d 704 (D.C.Cir.1964); and Walsonavich v. United States, 335 F.2d 96 (3rd Cir. 1964). For a discussion of these cases, see Schweiker, 450 U.S. at 792-93, 101 S.Ct. at 1473 (Marshall, J., dissenting). . The Secretary also ruled that the land office had no authority to accept Brandt’s amended offer, since another bid had been filed in the interim, thus destroying Brandt’s priority. See 427 F.2d at 55. . Act of Aug. 12, 1970, Pub.L.No.91-375, 84 Stat. 719, codified at 39 U.S.C. § 101 et seq. (1976). . These holdings are particularly significant in light of the fact that the statutory predecessor of the Postal Service, the United States Post Office Department, “had been a sovereign federal instrumentality, immune from state power or regulation.\" Beneficial Finance Co. v. Dallas, 571 F.2d 125, 128 (2nd Cir. 1978)." }, { "docid": "23133807", "title": "", "text": "and reliability in their dealings with their Government. [Emphasis in original and added] The Court in Community Health Services discussed various examples of governmental misconduct in which equitable estoppel was denied or granted depending on the facts, including Immigration and Naturalization Service v. Miranda, 459 U.S. 14, 17, 19, 103 S.Ct. 281, 282, 283, 74 L.Ed.2d 12 (1982) (“The Court of Appeals thus correctly considered whether as an initial matter, there was a showing of affirmative misconduct.”); Schweiker v. Hansen, 450 U.S. 785, 788, 101 S.Ct. 1468, 1471, 67 L.Ed.2d 685 (1981) (‘“It is the duty of all courts to observe the conditions defined by Congress for charging the public treasury.’ ”) (quoting Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 385, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947)). 467 U.S. at 60 n. 12, 104 S.Ct. at 2224 n. 12. The Court in Community Health Services stated that “at least two of our cases seem to rest on the premise that when the Government acts in misleading ways, it may not enforce the law if to do so would harm a private party as a result of government deception.” Id. (citing United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 675, 93 S.Ct. 1804, 1817, 36 L.Ed.2d 567 (1973) (evidence of misleading information by government is pertinent to defense of whether it was reasonable to rely thereon); and Moser v. United States, 341 U.S. 41, 47, 71 S.Ct. 553, 556, 95 L.Ed. 729 (1951) (finding “misleading circumstances” the Court held that “elementary fairness” required estoppel)). There are varied circumstances in which equitable estoppel has been imposed by the courts against the government. Among the circuits, see, e.g., Meister Brothers, Inc. v. Macy, 674 F.2d 1174, 1177 (7th Cir.1982) (“the ‘public has an interest in seeing its government deal carefully, honestly and fairly with its citizens’ ”) (quoting United States v. Wharton, 514 F.2d 406, 412-13 (9th Cir.1975); Corniel-Rodriguez v. Immigration and Naturalization Service, 532 F.2d 301, 307 (2d Cir.1976) (refusing “to sanction a manifest injustice occasioned by the Government’s own failures”); United States v. Lazy FC" }, { "docid": "7633691", "title": "", "text": "Government. See, e.g., Cheers v. Secretary of HEW, 610 F.2d 463 (7th Cir. 1979), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980). Beyond that, however, it is far from clear when the Government may be estopped. Compare Corniel-Rodriguez v. INS, 532 F.2d 301 (2nd Cir. 1976); United States v. Lazy FC Ranch, 481 F.2d 985 (9th Cir. 1973); United States v. Fox Lake State Bank, 366 F.2d 962 (7th Cir. 1966); Walsonavich v. United States, 335 F.2d 96 (3d Cir. 1964); Simmons v. United States, 308 F.2d 938 (5th Cir. 1962); Semaan v. Mumford, 118 U.S.App.D.C. 282, 335 F.2d 704 (1964); Eichelberger v. Commissioner of Internal Revenue, 88 F.2d 874 (5th Cir. 1937), cited in Schweiker v. Hansen, 450 U.S. 785, 791, 101 S.Ct. 1468, 1472, 67 L.Ed.2d 685 (1981) (Marshall, J., dissenting). Neither of the parties has attempted to address or articulate any general standard and, therefore, resolution of the issue on a broad basis appears inappropriate in this case. Thus, we limit our holding to the facts of this case and do not intend to intimate in any way an appropriate standard for resolution of future cases until the issue is squarely before this court. We are simply holding on the quite unique facts of this case that a government agency will not be permitted belatedly to assert a technical defense to a law suit which admittedly, if it had been in a state court against a private insurance carrier, would not have prevailed. The Agency was not in any sense acting in a sovereign capacity here but was engaged in essentially a private business. We are not saying that the Agency’s actions were intentionally designed to cause the appellant not to see to it that a formal proof of claim was filed. We do say here, however, that the actions of paying a part of the claim under a policy which the insurer has treated as being fully applicable to the entire claim, over many months of time, does not permit a withdrawal thereafter from the position clearly and unambiguously taken. Accordingly, the" }, { "docid": "2027090", "title": "", "text": "and its own interpretation of reopening. Toward this purpose, it concluded that the Board could revise any aspect of the reimbursement calculation, whether or not it was contested by the provider or considered by the intermediary, \"when such revision is necessary to accommodate other PRRB revisions of matters that were claimed by the provider, decided adversely by the intermediary, and then contested by the provider to the PRRB.” Athens, 743 F.2d at 9. However, in contrast, the provider can raise only those issues already raised before the intermediary, determined that appellate court. . This standard is adopted from the Ninth Circuit’s requirements as presented in TRW, Inc. v. Federal Trade Comm’n, 647 F.2d 942, 950-51 (9th Cir.1981). . See, e.g., U.S. v. Asmar, 827 F.2d 907, 912 (3d Cir.1987); Mukherjee v. INS, 793 F.2d 1006, 1008 (9th Cir.1986); United States v. Medico Industries, Inc., 784 F.2d 840, 846 n. 2 (7th Cir.1986); Portmann v. United States, 674 F.2d 1155, 1167 (7th Cir.1982); Akbarin v. INS, 669 F.2d 839, 843-44 (1st Cir.1982); Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir.1976); Semaan v. Mumford, 335 F.2d 704 (D.C.Cir. 1964); Simmons v. United States, 308 F.2d 938 (5th Cir.1962). .The district court also stated that \"the Secretary had an affirmative obligation to inform the plaintiff’ of the method of appeal. We are puzzled by the intended import of that comment. An \"affirmative obligation” cannot be construed to be the “affirmative misconduct” requirement of Portmann. More importantly, however, the Medicare statute, regulations, and Reimbursement Manual clearly covered the policies in question. As we have discussed above, the plain reading of those statements allows a provider to appeal from the second NPR. The Secretary had no duty to inform further." }, { "docid": "22927742", "title": "", "text": "We have never held the particular formulation of equitable estoppel applied against the Government there to be applicable in an immigration case, nor do we need to reach that question here. Whatever the rule of estoppel may be in immigration cases, it can only be invoked if the governmental conduct complained of amounts to “affirmative misconduct” as that term was used in INS v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973). We find no “affirmative misconduct” on the facts now before us. In Hibi the Supreme Court reversed a decision of this circuit, 475 F.2d 7 (9th Cir. 1973), which had held the Government to be estopped from asserting delay in filing as a basis for rejecting a petition for naturalization. Hibi had sought naturalization in 1967 under §§ 701-05 of the Nationality Act of 1940 which provided for naturalization of non-citizens who had served honorably in the Armed Forces of the United States during World War II. Hibi, a native of the Philippines, was a member of this class but his 1967 petition did not meet the Act’s requirement that all petitions be filed no later than December 31, 1946. He asserted estoppel against the Government based on the Government’s “failure to advise him, during the time he was eligible, of his right to apply for naturalization, and from [INS’s] failure to provide a naturalization representative in the Philippines during all of the time [Hibi] and those in his class were eligible for naturalization.” 414 U.S. at 7-8, 94 S.Ct. at 21. There is no doubt that the course of conduct pursued by INS to the detriment of Hibi was a serious breach of duty by Government officials. We stated that the Government had “denied petitioner of a fair opportunity to apply for naturalization during the only time he could apply” and that the conduct of the responsible officials was “in derogation of their duty to carry out an Act of Congress.” 475 F.2d at 10, 11. The dissent of Mr. Justice Douglas in Hibi characterized this conduct as “the deliberate — and successful" }, { "docid": "23670016", "title": "", "text": "rev’d on other grounds sub nom. Heckler v. Community Health Services of Crawford County, 467 U.S. 51, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984), which requires affirmative misconduct on the part of the government officials. See, e.g., Akbarin v. INS, 669 F.2d 839 (1st Cir.1982); Corniel-Rodriguez v. INS, 532 F.2d 301 (2d Cir.1976); Portmann v. United States, 674 F.2d 1155 (7th Cir.1982); Mukherjee v. INS, 793 F.2d 1006 (9th Cir.1986). Other circuits have recognized government estoppel as a viable defense, but have adopted dissimilar tests. The Tenth Circuit has stated that the \"[a]pplication of the doctrine is justified only where ‘it does not interfere with underlying government policies or unduly undermine the correct enforcement of a particular law or regulation.’ ” Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1416 (10th Cir.1984), quoting U.S. v. Browning, 630 F.2d 694 (10th Cir.1980), cert. denied, 451 U.S. 988, 101 S.Ct. 2324, 68 L.Ed.2d 846 (1981). The District of Columbia Circuit has noted in Boulez v. Commissioner, 810 F.2d 209 (D.C.Cir.1987) that ‘‘[cjlaims of estoppel arising from the behavior of governmental employees may be asserted only in a narrow category of circumstances.” Id. at 218 n. 68. The Fourth, Sixth and the Eighth Circuits, while not ruling out government estoppel, have merely stated that more than the traditional elements of estoppel are necessary to estop the government. See West Augusta Development Corp. v. Giuffrida, 717 F.2d 139 (4th Cir.1983); S.E.C. v. Blavin, 760 F.2d 706 (6th Cir.1985); Wellington v. INS, 710 F.2d 1357 (8th Cir.1983). The Fifth Circuit has applied government estoppel against the IRS in Simmons v. United States, 308 F.2d 938 (5th Cir.1962), but did not adopt — or even address — the appropriateness of an affirmative misconduct standard. The Eleventh Circuit has to this point avoided deciding ‘‘whether to adopt the affirmative misconduct exception to the refusal to estop the government in its sovereign activities.” Lyden v. Howerton, 783 F.2d 1554, 1558 (11th Cir.1986). . Estoppel has been applied against the Internal Revenue Service in the past. In Walsonavich v. U.S., 335 F.2d 96 (3d Cir.1964), the taxpayer" }, { "docid": "9697174", "title": "", "text": "789, 101 S.Ct. 1468, 1471, 67 L.Ed.2d 685 (1981); INS v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 21, 38 L.Ed.2d 7 (1973); Rogers, 692 F.2d at 38. Generally, those courts that have applied the doctrine against the Government require that the traditional four estoppel elements be present in the case plus affirmative misconduct by the Government. Rogers, 692 F.2d at 37. The elements of estoppel are: (1) that the party to be estopped knows the facts; (2) that the party intends that his conduct be acted on or the party acts in a manner that the party asserting the estoppel has a right to believe that it is intended that the conduct be relied on; (3) that the party asserting estoppel be ignorant of the true facts; and (4) that the party asserting estoppel rely on the conduct to his injury. United States v. Ruby Co., 588 F.2d 697, 703 (9th Cir.1978), cert. denied, 442 U.S. 917, 99 S.Ct. 2838, 61 L.Ed.2d 248 (1979); United States v. Wharton, 514 F.2d 406, 412 (9th Cir.1975); United States v. Georgia-Pacific Co., 421 F.2d 92, 96 (9th Cir.1970). In addition to these four necessary elements of estoppel, when applied to the Government, there must also be an affirmative misrepresentation, misconduct or concealment by the Government. INS v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 21, 38 L.Ed.2d 7 (1973); United States v. Harvey, 661 F.2d 767, 774 (9th Cir.1981), cert. denied, - U.S. -, 103 S.Ct. 74, 74 L.Ed.2d 72 (1982); Yang v. Immigration and Naturalization Service, 574 F.2d 171, 175 (3rd Cir.1978); United States v. Ruby Co., 588 F.2d at 703-04. Cf. Schweiker v. Hansen, 450 U.S. 785, 788, 101 5. Ct. 1468, 1470, 67 L.Ed.2d 685 (1981). Applying these principles to the instant case, the Court finds that all of the traditional estoppel elements are satisfied. First, the undisputed affidavit of Mr. Litvack clearly establishes that General Leech inquired on behalf of the State of Tennessee, concerning the interest of the United States in the State’s recoveries of overcharges from the bid-riggers. Mr. Litvack represented to General Leech" }, { "docid": "12612622", "title": "", "text": "or litigation. These have been cases in which the government first encouraged a mistake and then took advantage of it in subsequent litigation. See e.g., United States v. Fox Lake State Bank, 366 F.2d 962 (7th Cir.1966); Meister Bros., Inc. v. Macy, 674 F.2d 1174 (7th Cir.1982); United States v. Lazy FC Ranch, 481 F.2d 985 (9th Cir.1973); see generally K. Davis, Administrative Law Treatise § 20.6 (2d ed. 1983), and 1982 Supplement, §§ 17.03 and 17.04. In the instant, case, defendants do not contend that the government misled them and then took advantage of their mistake. Rather, they complain that the government treated them unfairly. Arguably, a government agency has a duty to treat those subject to its regulation fairly. Investors Research v. Securities and Exchange Comm’n., 628 F.2d 168, 174 (D.C.Cir.), cert. denied 449 U.S. 919, 101 S.Ct. 317, 66 L.Ed.2d 146 (1980); Gressley v. Califano, 609 F.2d 1265, 1207-8 (7th Cir.1979). However, the Court’s research has disclosed no cases directly on point to the defendant’s contentions. Thus, the Court must survey the general law of equitable defenses against the government in order to decide defendants’ contentions. The starting point for analysis must be the most recent decision of the Supreme Court regarding estoppel of the government, Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981). In Hansen, a claimant for Social Security benefits sought to estop the government on the basis of oral misrepresentations by a field representative that the claimant was not eligible for certain benefits. As a result, the claimant alleged, she did not file a written application and hence was precluded from receiving some retroactive benefits under Social Security regulations. Id. at 786, 101 S.Ct. at 1469. The claimant sought to estop the government from enforcing the regulations in light of the alleged oral misrepresentations. The Court held that estoppel was inappropriate. . The Court analyzed the problem by balancing the public interest that would be frustrated if the estoppel were allowed against the possible injustice if the estoppel were denied. With respect to the former, the Court reaffirmed “the" }, { "docid": "22957376", "title": "", "text": "a petition for naturalization pursuant to the Nationality Act. In his petition, Hibi contended that the United States should be estopped to enforce the December 31, 1946 deadline, since the government had failed during Hibi’s period of eligibility to encourage him to make a timely petition for naturalization. . For a classic and oft-cited statement of the requirements of an equitable estoppel, see J. Pomeroy, Equity Jurisprudence § 805 at 191— 92: 1. There must be conduct — acts, language, or silence — amounting to a representation or a concealment of material facts. 2. These facts must be known to the party estopped at the time of his said conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him. 3. The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel, at the time when such conduct was done, and at the time when it was acted upon by him. 4. The conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, and, thus relying, he must be led to act upon it. 5. He must in fact act upon it in such a manner as to change his position for the worse .... . See 450 U.S. at 788-89 n.4, 101 S.Ct. at 1471 n.4. Among the cases distinguished by the Schweiker Court were United States v. Lazy FC Ranch, 481 F.2d 985 (9th Cir. 1973); United States v. Fox Lake State Bank, 366 F.2d 962 (7th Cir. 1966); Semaan v. Mumford, 335 F.2d 704 (D.C.Cir.1964); and Walsonavich v. United States, 335 F.2d 96 (3rd Cir. 1964). For a discussion of these cases, see Schweiker, 450 U.S. at 792-93, 101 S.Ct. at 1473 (Marshall, J., dissenting). . The Secretary also ruled that the land office had no authority to accept Brandt’s amended offer, since another bid had been filed in the interim, thus destroying Brandt’s priority. See 427 F.2d at 55. . Act of Aug. 12, 1970, Pub.L.No.91-375, 84 Stat. 719," }, { "docid": "11821471", "title": "", "text": "U.S. at 788, 101 S.Ct. at 1470-71, 67 L.Ed.2d 685, citing INS v. Hibi, 414 U.S. 5, 8-9, 94 S.Ct. 19, 21-22, 38 L.Ed.2d 7 (1973) (per curiam), and Montana v. Kennedy, 366 U.S. 308, 314-15, 81 S.Ct. 1336, 1340-41, 6 L.Ed.2d 313 (1961). See also Moser v. United States, 341 U.S. 41, 47, 71 S.Ct. 553, 556, 95 L.Ed.2d 729 (1951) (no need to evaluate facts on basis of estoppel of Government). Hansen itself is not otherwise helpful here because the decision seems to rest to some degree on the fact that the estoppel “threaten[ed] the public fisc.” 450 U.S. at 788 n.4, 101 S.Ct. at 1471 n.4, 67 L.Ed.2d 685. The immigration question in this case does not. In addition, the alleged error by the INS in the instant case was a misinterpretation of a binding federal regulation, not of a nonbinding one as in Hansen. Some federal courts of appeals have stated that reliance on affirmative misconduct by the Government may create an estoppel against the Government in immigration cases. See Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir. 1976); de Hernandez v. INS, 498 F.2d 919, 921 (9th Cir. 1974) (per curiam). Other decisions have held against the Government on what amounts to an estoppel theory without actually mentioning estoppel. See Mashi v. INS, 585 F.2d 1309, 1315 (5th Cir. 1978); Tejeda v. INS, 346 F.2d 389, 392-94 (9th Cir. 1965); McLeod v. Peterson, 283 F.2d 180, 187 (3d Cir. 1960). Although this “reliance-on-misconduct” rule serves the useful function of balancing the interest of the United States as a sovereign controlling its borders against the interest of individuals, it has led to unproductive efforts to define “affirmative misconduct,” Santiago v. INS, 526 F.2d 488, 492-93 (9th Cir. 1975) (in banc), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976); Note, Equitable Estoppel of the Government, 79 Colum.L.Rev. 551, 559 (1979). For example, probably because the Ninth Circuit held that delay by the INS amounted to affirmative misconduct, Miranda v. INS, 638 F.2d 83, 84 (9th Cir. 1980), the Supreme Court vacated the" }, { "docid": "2522029", "title": "", "text": "to stand behind its lawful written agreements in order to prevent manifest injustice. See, e. g., Walsonavich v. United States, 335 F.2d 96, 100-101 (3d Cir. 1964). A governmental agency may change its policy in managing a program of statutory benefits, and persons having contact with the program will be bound by the lawful new policy even though relying upon the former interpretation. Thus, in Denena’s Heirs v. Communication Splicing & Engineering Co., 474 F.2d 1249, 1250 (3d Cir. 1973), a governmental agency was held to not be estopped from enforcing a new reporting and payment policy for employers in a workmen’s compensation insurance program by assessing a penalty for noncompliance, even where the agency’s forms still reflected the old policy with which the employer complied. Furthermore, the Supreme Court has indicated at least a strong reluctance to find equitable estoppel against the government in the absence of “affirmative misconduct” in Immigration & Naturalization Service v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973). In Hibi, a citizen of the Philippines petitioned in 1967 for citizenship under a special statute which conferred this opportunity upon certain aliens who served in the U. S. Armed Forces during World War II. Such a petition was required to be filed by December 31, 1946, but the U. S. Immigration and Naturalization Service failed both to advise Philippine citizens of this special right and to provide a naturalization agent in the Philippines during the limited period of eligibility. The government was held to not be estopped from asserting the statute of limitations under these facts, with the majority stating: While the issue of whether “affirmative misconduct” on the part of the Government might estop it from denying citizenship was left open in Montana v. Kennedy, 366 U.S. 308, 314, 315 [81 S.Ct. 1336, 6 L.Ed.2d 313] (1961), no conduct of the sort there adverted to was involved here. Id. at 8, 94 S.Ct. at 21. Whether the Supreme Court has engrafted a requirement that affirmative misconduct be shown before estoppel may be found against the government remains unclear; such a fixed" } ]

[ { "docid": "13837502", "title": "", "text": "an open charge. No effort was made by the arresting officers to take the men before a committing magistrate until about 5:00 or 5 :30 o’clock p. m. when an unanswered telephone call was made to the United States Commissioner’s office. From the time appellant was taken to headquarters until approximately midnight he was questioned continuously concerning the crimes during which time he repeatedly denied participation. Around midnight appellant made an oral confession which was reduced to writing between 1:45 and 2:45 o’clock a. m. This confession was agreed to by the second defendant. The third party arrested was released at this time. Subsequent to this confession, the appellant and the second defendant were taken to the restaurant where they described to the police officers and restaurant proprietor how they had entered the premises and pointed out correctly the place from which the whiskey had been taken. It is the contention of the Government that this last independent demonstration is a thing apart from the written confession and therefore relieves it of the rule of the McNabti case. But at the time of the later demonstration the defendant was still in custody, the demonstration immediately followed the written confession and if the confession was the result of illegal detention the later admissions were equally so'. They must stand or fall together. As in the McNabb decision, the Government’s case here is dependent upon the admissions obtained from the accused and if that evidence is inadmissible the judgment must be reversed. The record discloses a series of occurrences specifically condemned by the Supreme Court. For the evidence shows that in taking the accused parties from the place of arrest, to police headquarters both the United States Commissioner’s Office and the Municipal Court were by-passed. While we recognize that in many instances the circumstances may dictate that some delay ensues between arrest and commitment amounting to one, two or many hours, such is not the case here.- The Commissioner and several other committing magistrates before whom the accused might have been taken for a hearing had their offices on or near the" } ]

[ { "docid": "7664670", "title": "", "text": "robbed it, and to make a similar change with regard to his transportation in connection with the robbery of the bank. He said that the rest of the two statements were true as he had made them the previous day. The statements above discussed were offered and received in evidence at the appellant’s trial. He now urges that they should have been excluded, sua sponte by the court, even though appellant’s counsel at the trial did not object to' their admission. He says that the doctrines of the cases of McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100; Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479; and Gin-oza v. United States, CA 9, 279 F.2d 616, and Rule 5(a) of the Federal Rules of Criminal Procedure require the exclusion of the appellant’s confessions. The precedents cited by the appellant have no direct application to the facts of this case, since the appellant had not been arrested by federal officers and was not in their custody at the time he made the statements, nor, as we shall see, until eleven days thereafter. The appellant, however, urges that, even if a prisoner is in state custody, the McNabb exclusionary rule may exclude a confession made to federal agents if there is between the state and federal agents a cooperative “working arrangement” of a kind which makes the federal agents responsible for illegal detention by the state agents. Appellant cites Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829, as the instance in which the Supreme Court applied the doctrine referred to above. In that case a Tennessee sheriff illegally arrested many persons suspected by him of having blown up certain power lines. They were not taken before a magistrate, as Tennessee law required. They were held in custody in a private building belonging to the company some of whose facilities had been blown up. While there held, they were questioned intermittently over a period of" }, { "docid": "1661138", "title": "", "text": "BARNES, Circuit Judge. Appellant was convicted in two counts of violation of 18 U.S.C. § 1708 prohibiting the taking and opening of mail left for collection. He was sentenced to one year’s confinement on each count, the sentences to run concurrently, and credit was given for fifty-two days already served. This Court has jurisdiction of the appeal from this conviction. 28 U.S.C. § 1291. One Friday night in San Bernardino, California, a passerby saw appellant wandering down the street drunkenly. The passerby testified that he saw Muldrow take a package from on top of a mail depository, and rip it open. The package originated in New York and was addressed to a person in San Bernardino. The box from whence the package was taken was a depository, not a mailman’s collection point. The passerby called the police, and after some looking around appellant was located and arrested by the local police officer. Appellant was held in the San Bernardino jail. At 9:30 A.M. on Monday, the federal authorities were notified. A federal officer then checked with the addressee of the package and the passerby. He was unable to contact the United States Commissioner in San Bernardino because he was in trial. The federal officer took custody of appellant at 2 o’clock in the afternoon. He took appellant to his own office and questioned him for half an hour or an hour, during the course of which questioning appellant signed a confession. The officer thereupon took appellant before a committing magistrate in Riverside, California, eleven miles away. The testimony is that appellant was taken before the magistrate at 3 o’clock in the afternoon. Appellant’s first contention is that the admission of the confession into evidence was reversible error under Rule 5(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and the McNabb doctrine. McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. Cf. Up-shaw v. United States, 1948, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100; Mallory v. United States, 1957, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. The first case was" }, { "docid": "1661144", "title": "", "text": "supra, 318 U.S. at page 344, 63 S.Ct. at page 614. In Upshaw v. United States, supra, 335 U.S. at page 412, 69 S.Ct. at page 171, Mr. Justice Black held that the Mc-Nabb rule was to apply to voluntary as well as involuntary confessions. The purpose of the requirement for prompt commitment was to prevent “secret interrogation of persons accused of crime.” But as pointed out in United States v. Mitchell, 1944, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140, this cannot be an absolute rule. If it were, a voluntary confession of the commission of a crime to an arresting officer immediately after arrest would be inadmissible. As Mr. Justice Reed points out in his dissent in the Upshaw case (note 38, at page 436 of 335 U.S., at page 183 of 69 S.Ct.), the Notes to Rules of Criminal Procedure, as prepared under the direction of the Advisory Committee, state at page 30 with reference to the phrase “within a reasonable time” that such language was intentionally used so as to save confessions, “where the delay in committal was brief and reasonably explained * * (Emphasis added.) In the Mallory case, the period of detention was shorter (seven to ten hours) than in McNabb and Upshaw, but the availability of numerous committing magistrates was greater. The “arraignment could easily have been made in the same building in which the police headquarters [and Mallory] were housed.” 354 U.S. at page 455, 77 S.Ct. at page 1360, 1 L.Ed.2d 1479. In the Ginoza case, Ginoza was arrested on Thursday afternoon at about 3:15 P.M., and about fifteen minutes later he was taken to the federal building for searching. After approximately an hour’s questioning, Ginoza confessed. A call was made to the United States Commissioner, whose office was five blocks away, but he had gone home. No effort was made to contact the Commissioner at his home. No attempt was made to reach the two United States judges whose courts and chambers were in the federal building. There was another hour’s questioning, and further damaging admissions by Ginoza. Between" }, { "docid": "8111617", "title": "", "text": "ultimately to establish his guilt. He was not to be taken to headquarters to be subjected to a “process of inquiry” to determine whether or not he should be charged. Mallory held simply that a suspect “is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt.” (Emphasis supplied.) In short, police are not to arrest a suspect and then “use an interrogating process at police headquarters in order to determine whom they should charge.” Thus Mallory squarely accords with Upshaw v. United States where the “petitioner was illegally detained for at least thirty hours for the very purpose of securing these challenged confessions.” Similarly, Mallory is to be reconciled with United States v. Carignan which explained that “Mitchell’s confession, made before commitment, but also before his detention had been illegally prolonged, was admitted as evidence because it was not elicited ‘through illegality.’ The admission, therefore, was not ‘use by the Government of the fruits of wrongdoing by its officers.’ Upshaw v. United States, supra, 335 U.S. at page 413, 69 S.Ct. at page 172, [93 L.Ed. 100].” Applying the rule of Mallory then, as I read it, after making a valid arrest the officers had failed to arraign Trilling “without unnecessary delay” at an hour when reasonably they could, and as the law requires, should have arraigned him. They detained him for the very purpose of eliciting from him “damaging statements” upon which ultimately to establish his guilt of the six charges of breaking and entering and theft, respectively, involved in the counts under consideration. They had no other evidence to establish his guilt as to these counts. Thus Trilling’s detention in order to procure the challenged confessions was illegal. Because that detention was illegal and actually produced the disclosures, the confessions constituted “fruits of wrongdoing.” Therefore they were improperly received in evidence, and these convictions must be Reversed. BURGER, Circuit Judge, concurring with Judge DANAHER: I think the result reached by Judge" }, { "docid": "18063095", "title": "", "text": "application of the rule of the Mallory case (Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479), which dealt with a confession obtained after prolonged questioning by police from a defendant (apparently arrested without a warrant) before being taken before a committing magistrate and without being warned that he might keep silent and that any statement made by him might be used against him. This, the Supreme Court held was a violation of Rule 5(a) of the Federal Rules of Criminal Procedure, 18 U.S.C., requiring that an arrested person be taken before a committing magistrate “without unnecessary delay,” and rendered the confession inadmissible. In the instant case, according to the Government’s evidence, the defendant was arrested under a warrant late in the evening of August 20, 1958, and was interrogated between 8:30 and 9 o’clock the following morning. The statement was completed about 9:30 A.M. The agent who took the statement testified that he advised the defendant of his rights, at or about the time of the arrest, and said: “I advised him I was an agent of the F.B.I.; I was telling him that he didn’t have to talk to me if he didn’t want to; that I would desire to take a signed statement from him but he didn’t have to sign it; that he had the right to consult an attorney and that anything that he said could be used against him in a court of law at a later date.” There was no evidence as to the availability or nonavailability of a United States Commissioner prior to 9:30 A.M. of August 21, 1958. The Supreme Court has not yet held that a statement voluntarily made by a defendant, lawfully arrested, to the arresting officer between the time of arrest and before being brought before a committing magistrate is, for that reason alone, inadmissible in evidence. Compare, United States v. Mitchell, 322 U.S. 65, 70, 64 S.Ct. 896, 88 L.Ed. 1140, and Upshaw v. United States, 335 U.S. 410, 413, 69 S.Ct. 170, 93 L.Ed. 100. There is, in the instant ease, in" }, { "docid": "16581483", "title": "", "text": "Inexcusable detention for the purpose of illegally extracting evidence from an accused, and 'the successful extraction of such in-culpatory statements by continuous questioning for many hours under psychological pressure, were the decisive factors in the McNabb case which led us to rule that a conviction on such evidence could not stand.” And Mr. Justice Reed, concurring in the result of the Mitchell opinion, said, 322 U.S. at page 71, 64 S.Ct. at page 898: “As I understand McNabb v. United States, 318 U.S. 322, 63 S.Ct. 608, 87 L.Ed. 819, as explained by the Court’s opinion of today, the Mc-Nabb rule is that where there has been illegal detention of a prisoner, joined with other circumstances which are deemed by this Court to be contrary to proper conduct of federal prosecutions, the confession will not be admitted. Further, this refusal of admission is required even though the detention plus the conduct do not together amount to duress or coercion. * * * ” In Upshaw v. United States, 1948, 335 U.S. 410, 413, 69 S.Ct. 170, the Supreme Court said the McNabb rule is “that a confession is inadmissible if made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate, whether or not the ‘confession is the result of torture, physical or psychological * * *.’ ” With respect to the Upshaw statement of the McNabb rule we said in Garner v. United States, 84 U.S.App.D.C. 361, 364, 174 F.2d 499, 502, certiorari denied 1949, 337 U.S. 945, 69 S.Ct. 1502: “Under this rule, however, there still remains open in every case the question whether the detention was illegal; that is, whether the delay in presenting the prisoner to a magistrate was unnecessary. For Rule 5(a) of the Federal Rules of Criminal Procedure does not command that an arrested person be taken before a magistrate ‘forthwith.' It provides that the officer ‘shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States.’" }, { "docid": "103371", "title": "", "text": "to appellant; the second at 4:00 p. m. for an hour in the office of the chief of police and thereafter, after being told of the death of Norris and Humphrey, from about 6:00 p. m. to 10:30 p. m., during which he made a statement that was written down but not signed by him. No evidence as to any admissions made by him at any of these three periods of interrogation was introduced at the trial. On the following morning, at 7:00 a. m., three newspaper reporters requested and received permission to interview appellant, which they did with no police officer present. They returned at 9:00 a. m. with moving picture camera and sound recording equipment to obtain material from him for a television broadcast. On this occasion the chief of detectives was present but did not participate in the questioning. This interview was broadcast locally on May 1st and it was played off to the jury on the trial, over objections of appellant. At the proper time, before the trial, appellant made a motion to suppress any evidence “gained as a result of a conversation with the defendant during the time the defendant was illegally detained before being arraigned at the United States Commissioner’s hearing.” At the conclusion of this hearing the trial court found that Papworth was not in federal custody, but was held solely by state officers in the investigation of suspected state offenses; his arrest was not at the instigation of the federal officials. The court also found that Papworth did not even contend that he had been subjected to “force, threats, compulsion, coercion, inducement or other improper means.” See United States v. Papworth, D.C., 156 F.Supp. 842, 846. So finding, the court concluded the motion to suppress was without merit. Appellant here, relying on McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100; Rule 5(a), F.R.Crim.P., 18 U.S.C.A., and the recent Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1359, 1 L.Ed.2d 1479, decision, says" }, { "docid": "15548300", "title": "", "text": "say, as I did there, that the police might have attempted to legitimatize the confession by giving the prisoner, in advance of interrogation, the advisory statement which the commissioner would give him under Rule 5(b). But no advisory statement was made here; and, even if it had been, it could not, in the circumstances of this case, have saved the confession from exclusion under McNabb. The delay in taking appellant before a committing officer was the deliberate choice of the police and not the result of unavoidable circumstances. The arrest occurred during regular business hours and in taking appellant to police headquarters immediately thereafter police passed within earshot of many of the approximately 50 officers, authorized by law to commit accused persons. Clearly the delay was “unnecessary” in the usual sense of the word. In Akowskey v. United States, 81 U.S.App.D.C. 353, 158 F.2d 649 (1946), the arrest was made between 3:30 and 4:00 p. m. and “No effort was made by the arresting officers to take the men before a committing magistrate until about 5:00 or 5:30 o’clock p. m. when an unanswered telephone call was made to the United States Commissioner’s office.” We said: “The Commissioner and several other committing magistrates before whom the accused might have been taken for a hearing had their offices on or near the axis connecting the place of arrest and the place of detention. It is only reasonable to conclude that the parties could have been transported to the office of one of these officials in less time than it took to get to police headquarters. It is furthermore both by law and practice true that application for hearing might have been made to any of these committing magistrates at any hour. It follows that the detention was inexcusable and illegal at the outset.” 81 U.S.App.D.C. at page 354, 158 F.2d at page 650. In the present case the majority hold the delay “not unreasonable,” because there were three suspects. They say “it is inconceivable that [the police] should be required to lodge charges against any suspect until their investigation has developed" }, { "docid": "1699268", "title": "", "text": "thing the jurors heard before they retired to consider their verdict. 2. The McNabb Issue Appellant, relying on McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L. Ed. 100 (1948); Rule 5(a) Federal Rules of Criminal Procedure, 18 U.S.C. A.; Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); and Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829 (1943), says that his arrest by the Mobile City Police Department was at the instance and inducement of the federal authorities, and that the failure of the federal authorities to take him forthwith before the United States Commissioner invalidated, under Rule 5(a), any admissions made by him while held by the Mobile City Police Department. In other words, the second question presented by this appeal is whether, under the McNabb-Mallory Rule the admissions by the appellant should have been allowed in evidence. This Court has expressed its understanding of the Mc-Nabb-Mallory Rule as to abolish unlawful detention by, and at the instance of, federal officers and to require observance of Rule 5(a) of the Federal Rules of Criminal Procedure. Rule 5(a) of the Federal Rules of Criminal Procedure requires federal officers to take an arrested person before a United States Commissioner without unnecessary delay. The Supreme Court, in applying that rule, has made it abundantly clear that if an arrested person makes an incriminating statement or gives a confession after an arresting officer has failed to comply with Rule 5(a) the statement or confession is not admissible in evidence against the accused. This result obtains without regard to the voluntariness of the statement. The threshold question is whether the federal authorities had the custody and control of the appellant. Without detention by or at the instance of federal authorities Rule 5(a) is not applicable. The appellant was arrested by city authorities and was held by them. However, the appellant urges that because of the close cooperation between the Mobile City Police Department and the United" }, { "docid": "1661139", "title": "", "text": "with the addressee of the package and the passerby. He was unable to contact the United States Commissioner in San Bernardino because he was in trial. The federal officer took custody of appellant at 2 o’clock in the afternoon. He took appellant to his own office and questioned him for half an hour or an hour, during the course of which questioning appellant signed a confession. The officer thereupon took appellant before a committing magistrate in Riverside, California, eleven miles away. The testimony is that appellant was taken before the magistrate at 3 o’clock in the afternoon. Appellant’s first contention is that the admission of the confession into evidence was reversible error under Rule 5(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and the McNabb doctrine. McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. Cf. Up-shaw v. United States, 1948, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100; Mallory v. United States, 1957, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. The first case was decided before the Criminal Rules of Procedure were adopted, but the language involved is the same in all three eases. Their legal principle is here confused by the fact that appellant was held for over two days by local police officers before he came into federal custody. All time elements after appellant came into federal custody are not clear, but it is clear that the federal officer took appellant to his office and elicited a confession before taking him before a magistrate. There is language in Mallory v. United States, supra, 354 U.S. at page 454, 77 S.Ct. at page 1359, which indicates that this procedure is improper: \"The scheme for initiating a federal prosecution is plainly defined. The police may not arrest upon mere suspicion but only on ‘probable cause.’ The next step in the proceeding is to arraign the arrested person before a judicial officer as quickly as possible so that he may be advised of his rights and so that the issue of probable cause may be promptly determined. The arrested person" }, { "docid": "16581435", "title": "", "text": "We conclude that it does, because, like the McNabbs, appellant confessed as a result of being “questioned while held in ‘plain disregard of the duty enjoined by Congress upon Federal law officers’ promptly to take them before a judicial officer.” Upshaw v. United States, 1948, 335 U.S. 410, 413, 69 S.Ct. 170, 171, 93 L.Ed. 100. And in that view of the case, we do not reach the question of legal effect of psychological mistreatment of the appellant during questioning. Rule 5(a) .of the Federal Rules of Criminal Procedure directs that arrested persons must be taken “without unnecessary delay before * * * [an] officer empowered to commit persons * * Rule 5 (b) empowers the committing officer to admit such persons to bail and directs him to inform such persons of the complaint against them, their right not to make a statement and that any statement they do make may be used against them. Emphasing that this required procedure “checks resort to those reprehensible practices known as the ‘third degree’ * * 318 U.S. at page 344, 63 S.Ct. at page 614, the Supreme Court in McNabb established a rule of evidence excluding confessions “secured through * * * flagrant disregard of the procedure which Congress has commanded * * Id., 318 U.S. at page 345, 63 S.Ct. at page 615. In describing the circumstances in which the commitment requirements were violated there, the Court mentioned not only that the McNabbs had not been brought promptly before a magistrate, but in addition described the unremitting and obviously oppressive interrogation to which they had been subjected. Id., 318 U.S. at pages 344-345, 63 S.Ct. at pages 614-615. Thereafter, in United States v. Mitchell, the Court said, “Inexcusable detention for the purpose of illegally extracting evidence from an accused, and the successful extraction of such inculpatory statements by continuous questioning for many hours under psychological pressure, were the decisive features in the McNabb case * * 1944, 322 U.S. 65, 67, 64 S.Ct. 896, 897, 88 L.Ed. 1140. Mr. Justice Reed, concurring in the result, considered this “a desirable modification of" }, { "docid": "14517004", "title": "", "text": "and made a confession. In the case at bar, the judge said the defendant admitted the elements of the crime from the outset of his arrest by federal officers. The principal issue concerning the admissibility of the confession is whether the defendant was taken before the nearest available commissioner “without unnecessary delay” after his arrest. This is a requirement of Rule 5(a) of the Federal Rules of Criminal Procedure. This rule must be construed in the light of the teachings of the Mallory case where the Court held that the police process used in the arrest of the defendant was in violation of Rule 5(a) of the Criminal Rules. At. p. 453 of 354 U.S., at p. 1359 of 77 S.Ct., 1 L.Ed.2d 1479, the Court said: “In order adequately to enforce the congressional requirement of prompt arraignment, it was deemed necessary to render inadmissible incriminating statements elicited from defendants during a period of unlawful detention.” The rule of the Mallory case was first announced in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. The basis of the rule was a statute (Sec. 595, Title 28, U.S.C., 1942) the substance of which is now Rule 5(a) of the Criminal Rules. In Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100, the court followed McNabb and stated the rule of McNabb as follows: (335 U.S. p. 413, 69 S.Ct. p. 172, 93 L.Ed. 100) “ * * * that a confession is inadmissible if made during illegal detention due-to failure promptly to carry a prisoner before a committing magistrate, whether- or not the ‘confession is the result of torture, physical or psychological * * (Emphasis added.) The Court applied the McNabb rule im Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829. In that case-defendants were arrested by state officers, of Tennessee and subjected to detention! and long hours of questioning before being turned over to federal officers for arraignment. Tennessee had a statute-similar to the federal statute, the substance of which is now embraced in Rule-5(a) of" }, { "docid": "23475217", "title": "", "text": "was lured out of his home by a ruse and surrounded by several armed FBI agents “and at least one Lieutenant” of the Massachusetts State Police; that he was then placed under arrest and taken immediately to FBI headquarters in Boston; that during the morning he was shown a “confession” by his fiancee implicating him, and implicating herself as an accessory, and that he was taken to a room where his fiancee identified him and admitted signing the statement; that he was questioned “almost continuously” until 4:30 P.M., at which time he made an oral confession, which was then reduced to writing; and that thereafter he was taken before a United States Commissioner. He asserts that this delay between his arrest and his production before the Commissioner was a violation of his statutory and constitutional rights, citing McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, rehearing denied 319 U.S. 784, 63 S.Ct. 1322, 87 L.Ed. 1727, and Upshaw v. United States, 1948, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100. See also Mallory v. United States, 1957, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. He further alleges that he signed the confession not merely because of such unlawful delay, but because he was in actual fear and was coerced by threats that, if he did not confess, “they would turn petitioner over to the State Police” (some of whom were present), and that “if petitioner continued to maintain innocence and tried to fight the case [by] pleading not guilty,” his brother and other persons would be held and forced to testify against him, and that his fiancee would be charged as an accessory and “forced to testify against petitioner and herself * * * regardless of how she felt about it.” There is a final allegation that “because of fear, and his confession and the duress involved, he waived a jury trial and entered his plea of guilty * ” and a “contention” that “the judgment and sentence is void, because of [sic] his confession and plea of guilty were brought" }, { "docid": "23573173", "title": "", "text": "Federal Rules of Criminal Procedure, attempted to locate the United States Commissioner for a hearing. Since the Commissioner did not have regular office hours, it was necessary to reach him through the Marshal’s office, a procedure that usually took about two hours. After questioning Swallow, Agent Stewart returned to Rogers who made a signed confession and gave a handwriting specimen. There is no indication that any coercive means, physical or psychological, were employed during this time. At 3:30 that same afternoon, Rogers and Swallow, accompanied by the officers, walked to the Federal Courthouse where they were brought before the Commissioner for their hearing. Rogers argues that his confession and his handwriting sample should have been suppressed from evidence for two reasons. First, he contends that the period of time between the arrest and the hearing before the Commissioner was an “unnecessary delay” within the meaning of Rule 5(a) and any evidence obtained during this unnecessary portion of the detention should have been excluded by operation of the McNabb-Upshaw-Mallory rule. McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Upshaw v. United States, 1948, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100; and Mallory v. United States, 1957, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. Second he contends that the arrest was illegal, because it was made without probable cause, and that this illegality made the confession and the handwriting sample inadmissible. II. As Mr. Justice Black stated in Upshaw: “[A] confession is inadmissible if made during an illegal detention due to failure promptly to carry a prisoner before a committing magistrate, whether or not the ‘confession is the result of torture, physical or psychological * *.’ ” 335 U.S. at 413, 69 S.Ct. at 172, 93 L.Ed. 100. A violation of Rule 5(a) of the Federal Rules of Criminal Procedure therefore renders any evidence obtained during the illegal portion of the detention per se inadmissible, without regard to proof of coercion. United States v. Leviton, 2 Cir. 1951, 193 F.2d 848, cert. den’d 1952, 343 U.S. 946, 72 S.Ct. 860, 96 L.Ed." }, { "docid": "7806426", "title": "", "text": "from the bank, and the toy gun was also connected to the holdup. After the recovery of the evidence in appellant’s parents’ home, the F.B.I. agents brought him to local police headquarters. There, according to the agents, he voluntarily signed an extensive written confession covering the crime in some detail. Appellant was not brought before a magistrate until the next afternoon. As noted in our prior opinion: “The Government’s and appellant’s versions of the relevant facts — as developed in the pre-trial documents and trial testimony —were diametrically opposed. * * * Appellant * * * testified that he was ‘grabbed ... in the back of [his] pants,’ threatened with physical violence, slapped in the face when he refused to confess orally, and tricked or beaten into signing the written confession ; moreover, he denied consenting to the ‘search’ of his mother’s home.” 115 U.S.App.D.C. at 45, 317 F.2d at 109. II. The law requires an arresting officer to bring an accused before a magistrate “as quickly as possible.” Mallory v. United States, 354 U.S. 449, 454, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); Naples v. United States, 113 U.S.App.D.C. 281, 284, 307 F.2d 618, 621 (1962) (en banc). We must decide whether appellant was “promptly taken before a judicial officer as the law required,” or was “questioned while held in ‘plain disregard of the duty enjoined by Congress upon Federal law officers’ promptly to take [his] before a judicial officer.” Upshaw v. United States, supra Note 5, 335 U.S. at 413, 69 S.Ct. at 171, explaining McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). A basic purpose of Rule 5(a), F.R.Cr.P., is to make certain that a person arrested is advised by a judicial officer of his constitutional right to counsel and of his privilege against self-incrimination “without unnecessary delay.” If the police detain an accused “until he ha[s] confessed,” and only then, “when any judicial caution ha[s] lost its purpose, * * * arraign him,” Mallory v. United States, supra, 354 U.S. at 455, 77 S.Ct. at 1360, the confession is inadmissible" }, { "docid": "23107347", "title": "", "text": "until 4:30 or 5:00 o’clock of each day, and he was not required by the Judges of the United States District Court for the Southern District of California to keep his office open for the transaction of business on a 24-hour day basis. He further testified that it was not his practice to accept phone calls requesting arraignments out of office hours “except perhaps on weekends or holidays, or something of that kind, if the circumstances warrant it.” One of the officers testified that Commissioner Hocke was not in his office when Cook was brought to the Federal Building at about 6:00 p. m. on February 24, 1958, and that no eifort was then made to communicate with Mr. Hocke. The law is clear that Cook’s confession was not rendered inadmissible by the single fact that it was made while in the custody of the officers. As stated in McNabb v. United States, 318 U.S. 332, at page 346, 63 S.Ct. 608, 615, 87 L.Ed. 819: “The mere fact that a confession was made while in the custody of the police does not render it inadmissible.” The crucial question raised on this phrase of the case is: Was Cook’s detention following his lawful arrest illegal at the time of his confession as violative of the provisions of Rule 5(a) ? If the answer is in the affirmative, Cook’s confession should have been excluded if substance is to be given to the language of the Supreme Court of the United States appearing in Upshaw v. United States, 335 U.S. 410, in which the following statement appears at page 413, 69 S.Ct. 170, at page 172, 93 L.Ed. 100: “The Mitchell case, 322 U.S. at page 68, 64 S.Ct. at page 898 [United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140], however reaffirms the McNabb rule that a confession is inadmissible if made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate, whether or not the ‘confession is the result of torture, physical or psychological * * *’ ” The same views" }, { "docid": "3546819", "title": "", "text": "him promptly before a committing magistrate. Only last June, in reversing a conviction this court had affirmed, the Supreme Court said: “The police may not arrest upon mere suspicion but only on ‘probable cause.’ The next step in the proceeding is to arraign the arrested person before a judicial officer as quickly as possible so that he may be advised of his rights and so that the issue of probable cause may be promptly determined. * * * It is not the function of the police to arrest, as it were, at large and to use an interrogating process at police headquarters in order to determine whom they should charge before a committing magistrate * * Mallory v. United States, supra, 354 U.S. at pages 454, 456, 77 S.Ct. at pages 1359, 1360. The decision and opinion were unanimous. The Court pointed out that in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, it had “held that police detention of defendants beyond the time when a committing magistrate was readily accessible constituted ‘willful disobedience of law.’ In order adequately to enforce the congressional requirement of prompt arraignment, it was deemed necessary to render inadmissible incriminating statements elicited from defendants during a period of unlawful detention.” Mallory v. United States, supra, 354 U.S. at page 453, 77 S.Ct. at page 1358. The McNabb case was decided in 1943. Again in 1948, in reversing a conviction this court had affirmed, the Supreme Court expressly adhered to the “rule that a confession is inadmissible if made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate * * Upshaw v. United States, 335 U.S. 410, 413, 69 S.Ct. 170, 172, 93 L.Ed. 100." }, { "docid": "16581434", "title": "", "text": "EDGERTON, Chief Judge, announced the judgment and division of the court as follows: This conviction for second degree murder is reversed and the case is remanded to the District Court for a new trial on the ground that the trial court erred in refusing to exclude police testimony concerning appellant’s alleged oral confessions that she stabbed her husband. Chief Judge' EDGERTON and Circuit Judges PRETTYMAN, BAZE-LON, FAHY, ' WASHINGTON and DANAHER vote for reversal on that ground. Circuit Judges WILBUR K. MILLER, BASTIAN and BURGER vote for affirmance; Judge BAZELON files an opinion in which Judge EDGERTON concurs. Judge DANAHER files an opinion in which Judge PRETTYMAN concurs. Judges FAHY and WASHINGTON file a separate statement. Judge WILBUR K. MILLER files a dissenting opinion in which Judges BAS-TIAN and BURGER'concur. BAZELON, Circuit Judge, with whom EDGERTON, Chief Judge, concurs. The issue is whether the rule adopted by the Supreme Court in McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, requires, exclu sion of the testimony concerning appellant’s oral confession. We conclude that it does, because, like the McNabbs, appellant confessed as a result of being “questioned while held in ‘plain disregard of the duty enjoined by Congress upon Federal law officers’ promptly to take them before a judicial officer.” Upshaw v. United States, 1948, 335 U.S. 410, 413, 69 S.Ct. 170, 171, 93 L.Ed. 100. And in that view of the case, we do not reach the question of legal effect of psychological mistreatment of the appellant during questioning. Rule 5(a) .of the Federal Rules of Criminal Procedure directs that arrested persons must be taken “without unnecessary delay before * * * [an] officer empowered to commit persons * * Rule 5 (b) empowers the committing officer to admit such persons to bail and directs him to inform such persons of the complaint against them, their right not to make a statement and that any statement they do make may be used against them. Emphasing that this required procedure “checks resort to those reprehensible practices known as the ‘third degree’ * * 318 U.S." }, { "docid": "16581445", "title": "", "text": "m., the Sergeant interviewed her at the Homicide office. From about 12:00 noon to 2:00 p. m., he gave her another lie detector test. From about 2:00 p. m. to “quarter of 3, 3 o’clock” he interviewed her again. Thereafter she was returned to the Homicide office where she remained until “some time after' 3:30.” She was then sent to the Women’s Bureau where she arrived at 4:30 p. m. At 7:45 p. m. she was interviewed for 20 or 30 minutes by an officer from Precinct No. 9, who believed she was awakened for that purpose. She was awakened some time between 12 midnight and 3:00 a. m., Monday morning, and questioned by Sergeants Deeni-han and Clark from Homicide for about 40 minutes to an hour. It was during this period of questioning, said the officers, that appellant made the oral confession. Not until approximately 11:15 Monday morning, was appellant taken before the coroner for an inquest. Upon completion of the Government’s ■evidence at the hearing, the court observed that the period between appellant’s ■arrest and oral confession was “certainly dealing with a long period of time.” But the court, the prosecutor and defense counsel thought that illegality of detention was not the sole prerequisite to ■exclusion of the confession. As the prosecutor expressed it, “a showing * * * of a patent denial of due process by coercion” was required in addition. Defense counsel argued that, although illegal detention in itself is insufficient, sufficient psychological pressure had been shown by the Government’s own witnesses to render the confession inadmissible as a matter of law. He subscribed to the interpretation of McNabb expressed in Mr. Justice Reed’s dissent in Upshaw v. United States, 1948, 335 U.S. 410, 414, 69 S.Ct. 172, 93 L.Ed. 100, namely, that “pressure short of coercion but beyond mere detention makes confessions inadmissible.” Id., 335 U.S. at page 429, 69 S.Ct. at page 179. On the question of whether the application of the McNabb rule is to be decided by judge or jury, the trial court disregarded McNabb itself and followed the line of Mr." }, { "docid": "21372469", "title": "", "text": "was offered in evidence an objection to its admission was made on the ground that Walton had not been taken before a committing magistrate without unnecessary delay after his arrest. After a hearing out of the presence of the jury, the court overruled the objection. Rule 5(a), F.R.Cr.P., provides that an officer making an arrest under a warrant or without a warrant shall take the arrested person before the nearest available commissioner or committing magistrate “without unnecessary delay”, and if the person has been arrested without a warrant, a complaint shall be filed forthwith. It is now settled that if an arrested person makes incriminating statements or confessions after an arresting officer has failed to comply with Rule 5(a), the statements or confessions are not admissible in evidence against the accused even though voluntarily made. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479; Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100; United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140, rehearing denied 322 U.S. 770, 64 S.Ct. 1257, 88 L.Ed. 1595; McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, rehearing denied 319 U.S. 784, 63 S.Ct. 1322, 87 L.Ed. 1727. It is equally clear from these decisions that it was not the intent of the rule that all information obtained through questioning prior to the filing of formal charges or before an accused has been taken before a committing magistrate is inadmissible. As said in Mallory: “The requirement of Rule 5(a) is part of the procedure devised by Congress for safeguarding individual rights without hampering effective and intelligent law enforcement.” 354 U.S. at 453, 77 S.Ct. at 1359. In McNabb the, court said: “The mere fact that a confession was made while in the custody of the police does not render it inadmissible.” 318 U.S. at 346, 63 S.Ct. at. 615. There is no hard and fast rule as; to what constitutes unnecessary delay. Each case must be determined on its own facts. Pixley v. United States, 10 Cir., 220 F.2d" } ]

[ { "docid": "16447303", "title": "", "text": "are, however, several limitations on a district court’s power to fashion special conditions of supervised release. We list a few. First, a special condition must in fact be tailored to the circumstances: it can involve “no greater deprivation of liberty than is reasonably necessary” to achieve the purposes of supervised release. U.S.S.G. § 5D1.3(b)(2). Second, the condition imposed must be consistent with .any pertinent policy statements from the Sentencing Commission. Id. Finally, the trial court’s decision to impose the challenged condition must have adequate evidentiary support in the record. Brown, 235 F.3d at 6; United States v. Thurlow, 44 F.3d 46, 46 n. 3 (1st Cir.1995) (per curiam). Given York’s criminal history and in light of the record in this case, which includes a threat of violence by York against yet another woman, the district court was well within its discretion in requiring York to participate in the sex offender treatment program. The condition that he attend sex-offender treatment is plainly related to his criminal history: York has twice been convicted for sexually assaulting young girls, including one conviction only a year before he mailed his threatening letter to A.S. See United States v. Peterson, 248 F.3d 79, 84 (2d Cir.2001) (approving a special release condition of sex-offender treatment for a defendant convicted of bank larceny where the defendant had been convicted of a sex offense in state court five years earlier). York’s proven recidivism, moreover, makes the condition reasonably related to another permissible purpose of supervised release: protecting the public from further crimes by the defendant. In McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), the Supreme Court observed that convicted sex offenders who reenter society are “much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” Id. at 33, 122 S.Ct. 2017. Furthermore, treatment programs of the kind the district court has required York to attend may “enable sex offenders to manage their impulses and in this way reduce recidivism.” Id. The district court’s remarks during sentencing make clear that the court believed that" } ]

[ { "docid": "9515224", "title": "", "text": "register under SOR-NA, there was no suggestion that the defendant had chronically failed to comply with sex-offender registration requirements, as here. See United States v. Rogers, 468 Fed.Appx. 359, 362-64 (4th Cir.2012) (per curiam). IV. The judgment of the district court is affirmed. TORRUELLA, Circuit Judge (Dissenting). Because I find that the district court’s imposition of the special condition of supervised release — participation in a sex offender treatment program with accompanying requirements — is not “reasonably related to the factors set forth in section 3553(a)(1),” namely, the “nature and circumstances of the offense and the history and characteristics of the defendant,” I am forced to dissent. 18 U.S.C. §§ 3553(a)(1), 3583(d)(1); see also U.S.S.G. § 5D1.3(b). Nor do I find that the challenged condition is “sufficiently related to one or more of the permissible goals of supervisory release,” United States v. Brown, 235 F.3d 2, 6 (1st Cir.2000), which include: (1) the need to deter the defendant from further criminal conduct; (2) the need to protect the public from further crimes by the defendant; and (3) the effective educational, vocational, medical, or other correctional treatment of the defendant. U.S.S.G. § 5D1.3(b)(l); see also 18 U.S.C. § 3583(d)(1). First, the imposed special condition is not tailored to the nature and circumstances of the offense or to Morales-Cruz’s criminal history and characteristics as required under U.S.S.G. § 5D1.3(b)(2). The Government offered no evidence regarding Morales-Cruz’s “characteristics” that touch on either past sexual behavior or misconduct, so my review will focus on whether the special condition was reasonably related to his criminal history. While Morales-Cruz has prior convictions, his conviction for attempted sexual assault on an adult female victim occurred approximately eighteen years before the instant SORNA conviction and is too remote in time to be reasonably related to the imposition of the special condition here. There is ample precedent from sister circuits rejecting the imposition of special conditions where the sex offense conviction is temporally remote. See United States v. Dougan, 684 F.3d 1030, 1036 (10th Cir.2012) (imposition of special condition of sex offender treatment vacated where most recent sexual offense" }, { "docid": "18138764", "title": "", "text": "in-chambers conference just before the beginning of the sentencing hearing that it was “having trouble finding anything in the record” suggesting that he has a problem with children. We are not persuaded. A judge’s sentencing determinations after or at the end of a hearing take priority over earlier remarks which may be based on incomplete information or simply thrown out to invite response or test the waters. Prochner forfeited his right to object to the special conditions by not objecting promptly after announcement of the conditions. Had he done so, the district court would have been able to reconsider its proposed judgment in light of his objection and, if persuaded, modify it. See, e.g., id.; United States v. Mansur-Ramos, 348 F.3d 29, 32 (1st Cir.2003). The mere beginning ruminations of the court plainly did not cure Prochner’s later failure to state, once the court’s intent became manifest, that he was in any way bothered by the specified conditions. We review, therefore, solely for plain error. See Olano, 507 U.S. at 732, 113 S.Ct. 1770. 1. Sex Offender Treatment Program Prochner now argues that the district court erred in imposing the special condition that he participate, if so directed by the Probation Office and the Court, in a sex offender specific treatment program, because his conviction did not involve a sex-related offense and he has never been accused of sexual assault. A sentencing judge has the authority to impose any condition of supervised release that is “reasonably related to (1) the defendant’s offense, history, and characteristics; (2) the need to deter the defendant from further criminal conduct; (3) the need to protect the public from further crimes by the defendant; and (4) the effective educational, vocational, medical, or other correctional treatment of the defendant.” York, 357 F.3d at 20; see 18 U.S.C. § 3583(d)(1) (incorporating by reference 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D)); U.S.S.G. § 5D1.3(b)(1). Although these factors are connected by the “and” conjunction, see 18 U.S.C. § 3583(d)(1); U.S.S.G. § 5D1.3(b)(l), “the critical test is whether the challenged condition is sufficiently related to one or more of" }, { "docid": "9515218", "title": "", "text": "presentence investigation report. III. In United States v. York, 357 F.3d 14 (1st Cir.2004), this court set forth the legal criteria for imposition of supervised release conditions, as well as for appellate review of those conditions. We stressed that “the facts of [a defendant’s] underlying offense and criminal history are pertinent to the district court’s choice of supervised release conditions”: This is so by statute. Under 18 U.S.C. § 3583(d), the district court may impose any special condition of supervised release that it considers “appropriate,” provided that the condition satisfies certain specified criteria. One such criterion is that the condition imposed be “reasonably related to the factors set forth in section 3553(a)(1).” Id. § 3583(d)(1). Section 3553(a)(1), in turn, requires the court to consider “the nature and circumstances of the offense and the history and characteristics of the defendant.” See also U.S.S.G. § 5D1.3(b). Id. at 17. In York, we noted that there were limitations on the district court’s power to fashion conditions of supervised release. Id. at 20. The critical test is whether the condition is reasonably related to one or more of the goals of supervised release. Id. The district court here specifically made that link. It stated that Morales-Cruz had a lack of control, did not respect others, needed to be deterred, and that the community needed protecting from him. Morales-Cruz argues that failure to register is not a sex offense, though he acknowledges that sex offender treatment may be imposed in a case in which the underlying crime is not a sex offense. See id. at 19-20. Contrary to Morales-Cruz’s main argument, the court appropriately considered his failure to register under SORNA in three jurisdictions, and “[t]he condition that he attend sex-offender treatment is plainly related to his criminal history,” id. at 21, as well as to his present offense. SORNA requires sex offenders to “register, and keep the registration current, in each jurisdiction where the offender resides,” 42 U.S.C. § 16913(a), by providing certain “information to the appropriate official for inclusion in the sex offender registry,” id. § 16914(a), and by appearing in person at" }, { "docid": "23611341", "title": "", "text": "waive therapeutic confidentiality in connection with court-ordered sex offender treatment exceeds the sentencing court’s authority under 18 U.S.C. § 3583(d) and section 5D1.3(b) of the U.S. Sentencing Guidelines (“U.S.S.G.”). Third, he argues that the condition requiring his registration as a sex offender with state agencies violates the Tenth Amendment. Dupes also attacks the constitutionality of his restitution order, claiming that the Mandatory Victim Restitution Act (“MVRA”) violates the Sixth Amendment under the principles established in the Apprendi-Ring-Booker-Blakely line of cases. Finally, Dupes has submitted a supplemental pro se brief raising various other challenges to his conviction and sentence. I. Conditions of Supervised Release A. Standard of Review The propriety of conditions of supervised release are judged by an abuse of discretion standard. United States v. Brown, 402 F.3d 133, 136 (2d Cir.2005). Although the district court enjoys broad discretion in imposing these conditions, its discretion is not “untrammeled” and “our Court will carefully scrutinize unusual and severe conditions.\" United States v. Myers, 426 F.3d 117, 124 (2d Cir.2005) (internal citations and quotation marks omitted). Any error of law constitutes an abuse of discretion. See United States v. Johnson, 446 F.3d 272, 277 (2d Cir.2006). A challenge to conditions of supervised release that presents an issue of law is generally reviewed de novo, id., but we review Dupes’s claims for plain error because he failed to raise them before the district court at sentencing. United States v. Sofsky, 287 F.3d 122, 125 (2d Cir.2002). Under the plain error standard, before an appellate court can correct an error not raised below, there must be (1) an error, (2) that is plain and (3) that affects substantial rights. If these conditions are met, an appellate court may then exercise its discretion to correct the error, but only if it seriously affects the fairness, integrity or public reputation of judicial proceedings. See id. at 125 n. 2 (citing Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999)). B. Merits 1. The Double Jeopardy Claim The Double Jeopardy Clause protects a defendant from successive punishments for the same criminal" }, { "docid": "5032084", "title": "", "text": "If we were reviewing the conditions based on a preserved objection, the substantive question would be whether these conditions were both reasonably related to the history and characteristics of the defendant and whether they would serve a permissible purpose such as deterring criminal conduct, protecting the public, or providing the defendant with needed treatment. “ ‘[Tjhe critical test is whether the challenged condition is sufficiently related to one or more of the permissible goals of supervised release!]]’ [and] .... the fact that a condition of supervised release is not directly related to [the] crime of conviction does not render that condition per se invalid.” United States v. York, 357 F.3d 14, 20 (1st Cir.2004) (quoting United States v. Brown, 235 F.3d 2, 6 (1st Cir.2000)). This court has previously ruled that such conditions of supervised release may be imposed when the instant offense of conviction is not a sex offense but the defendant had a conviction for a sex offense. York, 357 F.3d at 14; accord United States v. Prochner, 417 F.3d 54, 63 (1st Cir.2005). Sebastian had previously been convicted of a sexual assault serious enough to warrant a ten-year sentence. That eight of those years were suspended does not detract from the gravity of the offense: two years in prison is not a trivial amount and the additional eight years under a suspended sentence may reflect a concern about long-term behavior. Pertinently, the Supreme Court has recognized that “[t]he risk of recidivism posed by sex offenders is ‘frightening and high.’ ” Smith v. Doe, 538 U.S. 84, 105, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (quoting McKune v. Lile, 536 U.S. 24, 34, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002)). The Smith Court approved a state sex-offender-registration statute and noted, Empirical research on child molesters, for instance, has shown that, “[c]ontrary to conventional wisdom, most reoffenses do not occur within the first several years after release,” but may occur “as late as 20 years following release.” National Institute of Justice, R. Prentky, R. Knight, & A. Lee, U.S. Dept. of Justice, Child Sexual Molestation: Research Issues 14 (1997)." }, { "docid": "16447304", "title": "", "text": "girls, including one conviction only a year before he mailed his threatening letter to A.S. See United States v. Peterson, 248 F.3d 79, 84 (2d Cir.2001) (approving a special release condition of sex-offender treatment for a defendant convicted of bank larceny where the defendant had been convicted of a sex offense in state court five years earlier). York’s proven recidivism, moreover, makes the condition reasonably related to another permissible purpose of supervised release: protecting the public from further crimes by the defendant. In McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), the Supreme Court observed that convicted sex offenders who reenter society are “much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” Id. at 33, 122 S.Ct. 2017. Furthermore, treatment programs of the kind the district court has required York to attend may “enable sex offenders to manage their impulses and in this way reduce recidivism.” Id. The district court’s remarks during sentencing make clear that the court believed that York needed such treatment and that he continued to pose a risk to young girls. The district court committed no error, plain or otherwise, in requiring York to participate in a sex-offender treatment program as a condition of his supervised release. C. Mandatory Polygraph Testing More serious is York’s Fifth Amendment challenge to the mandatory polygraph testing requirement in his supervised release conditions. We turn to that question after addressing York’s two threshold objections to the polygraph testing condition. 1. Impermissible delegation York contends that the polygraph testing requirement, as worded in the district court’s order, unlawfully delegates to non-judicial officers the power to determine matters of punishment. He argues that the district court’s command that he “shall be required to submit to periodic polygraph testing as a means to insure that he is in compliance with the requirements of his therapeutic program” is vague as to the frequency, duration, and allowable scope of the questioning. By failing to specify these details, York claims, the district court impermissibly assigned to the Probation Office the power" }, { "docid": "22131087", "title": "", "text": "to take as a condition of his supervised release must be reasonably related to his treatment as a sex offender. Indeed, were the rule otherwise, a person on supervised release could arguably violate the terms of his release by neglecting to take prescribed cold medications. Therefore, we hold that any medication condition that the district court imposes on remand must be limited to medications reasonably related to Cope’s treatment as a sex offender. VII. Cope also argues that the sex offender treatment condition requiring him to submit to plethysmograph, Abel, and polygraph testing, as well as to inpatient treatment, is overbroad. Cope cites no authority for this proposition, and we hold that the district court did not abuse its broad discretion in setting these conditions of supervised release. Williams, 356 F.3d at 1052; United States v. Bee, 162 F.3d 1232, 1234 (9th Cir.1998). The district court’s order requiring comprehensive sex offender treatment is reasonably related to Cope’s history as a recidivist sex offender, 18 U.S.C. § 3558(a)(1), the need to protect the public from potential future sex crimes, id. § 3553(a)(2)(C), the need to deter Cope from committing such crimes, id. § 3553(a)(2)(B), and Cope’s need for correctional treatment, id. § 3553(a)(2)(D). See 18 U.S.C. § 3583(d)(1). In addition, the condition does not involve a greater deprivation of liberty than is reasonably necessary for these purposes, id. § 3583(d)(2), and is not contrary to any policy statements issued by the Sentencing Commission, id. § 3583(d)(3); see United States v. Fellows, 157 F.3d 1197, 1203-04 (9th Cir.1998) (rejecting an overbreadth challenge to aspects of a supervised release condition relating to sex offender treatment). VIII. Finally, we address whether the special condition of Cope’s supervised release prohibiting him from possessing “any materials ... depicting and/or describing child pornography” is overbroad. Cope contends this condition is overbroad because it exposes him to incarceration for possession of otherwise protected materials “describing” child pornography, such as statutes, caselaw, and Cope’s own writings as part of his sex offender treatment. Cope did not object to this condition below, so we review for plain error. United States" }, { "docid": "16447300", "title": "", "text": "is no factual record developed as to the specific sex offender treatment program that York will be required to attend, the types of polygraph exams that may be administered, or even the questions that York will likely be required to answer. While the relevant treatment programs or polygraph technology may be somewhat different in 2006, information as to existing programs and polygraph exams is surely available and would have been helpful. A timely objection and the creation of a record would have permitted both the district court and this court to review York’s claims with the benefit of that information. B. Sex Offender Treatment Requirement York argues that because his conviction was for mailing a threatening communication, not for a sex-related crime, the requirement that he participate in a sex offender treatment program imposes a “greater deprivation of liberty than is reasonably necessary” to deter criminal conduct or protect the public. U.S.S.G. § 5D1.3(b). York misunderstands the law. The Sentencing Guidelines do not limit district courts to consideration only of the facts of the crime charged. A sentencing court should consider each defendant’s history, regardless of the nature of the crime of conviction. The judge has the authority to impose any condition of supervised release that is reasonably related to (1) the defendant’s offense, history, and characteristics; (2) the need to deter the defendant from further criminal conduct; (3) the need to protect the public from further crimes by the defendant; and (4) the effective educational, vocational, medical, or other correctional treatment of the defendant. U.S.S.G. § 5D1.3(b)(l); see also 18 U.S.C. § 3583(d)(1); Mansur-Ramos, 348 F.3d at 33; United States v. Peppe, 80 F.3d 19, 23 (1st Cir.1996). Although these factors are connected by the word “and,” see § 3583(d)(1); § 5D1.3(b)(l), “the critical test is whether the challenged condition is sufficiently related to one or more of the permissible goals of supervised release.” Brown, 235 F.3d at 6 (emphasis added); see also United States v. Barajas, 331 F.3d 1141, 1146-47 (10th Cir.2003) (noting that every circuit to have decided the issue has adopted this interpretation notwithstanding the “and”" }, { "docid": "16447301", "title": "", "text": "charged. A sentencing court should consider each defendant’s history, regardless of the nature of the crime of conviction. The judge has the authority to impose any condition of supervised release that is reasonably related to (1) the defendant’s offense, history, and characteristics; (2) the need to deter the defendant from further criminal conduct; (3) the need to protect the public from further crimes by the defendant; and (4) the effective educational, vocational, medical, or other correctional treatment of the defendant. U.S.S.G. § 5D1.3(b)(l); see also 18 U.S.C. § 3583(d)(1); Mansur-Ramos, 348 F.3d at 33; United States v. Peppe, 80 F.3d 19, 23 (1st Cir.1996). Although these factors are connected by the word “and,” see § 3583(d)(1); § 5D1.3(b)(l), “the critical test is whether the challenged condition is sufficiently related to one or more of the permissible goals of supervised release.” Brown, 235 F.3d at 6 (emphasis added); see also United States v. Barajas, 331 F.3d 1141, 1146-47 (10th Cir.2003) (noting that every circuit to have decided the issue has adopted this interpretation notwithstanding the “and” conjunction). So the fact that a condition of supervised release is not directly related to York’s crime of conviction does not render that condition per se invalid. York acknowledges these principles but argues that sex offender treatment is uniquely reserved for eases involving sex offenses. He points to U.S.S.G. § 5D1.3(d)(7), which provides that a special condition requiring the defendant’s participation in a sex-offender treatment program should be imposed “if the instant offense of conviction is a sex offense.” But this is little aid to York, as the Guidelines conspicuously do not say that sex-offender treatment is appropriate only if the underlying crime was a sex offense. In fact, the preamble to § 5D1.3(d) provides that the special conditions listed therein, including participation in a program for sex offenders, “are recommended in the circumstances described and, in addition, may otherwise be appropriate in particular cases.” (emphasis added). And nothing in the statute underlying § 5D1.3 limits the special condition of sex-offender treatment to defendants under prosecution for sex crimes. See 18 U.S.C. § 3583. There" }, { "docid": "23611343", "title": "", "text": "offense. United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). Dupes claims that the district court violated the prohibition against double jeopardy by imposing a punishment relating to the two sex offenses for which he previously had been sentenced. We cannot agree. The challenged conditions of supervised release are an authorized punishment for Dupes’s securities fraud conviction, not a successive punishment for his prior sex offense convictions. The district court has broad authority pursuant to 18 U.S.C. § 3583(d) to impose any condition of supervised release that it considers to be appropriate, provided such condition;4107;4108;4107;4108is “reasonably related” to certain statutory sentencing factors listed in section 3553(a)(1) and (a)(2) of that title, “involves no greater deprivation of liberty than is reasonably necessary” to implement the statutory purposes of sentencing, and is consistent with pertinent Sentencing Commission policy statements. 18 U.S.C. § 3583(d); Myers, 426 F.3d at 123-124. The factors of section 3553(a)(1) and (a)(2) to which conditions of supervised release must be reasonably related are also set forth in U.S.S.G. § 5D1.3(b)(l): (A) the nature and circumstances of the offense and the history and characteristics of the defendant; (B) the need for the sentence imposed to afford adequate deterrence to criminal conduct; (C) the need to protect the public from further crimes of the defendant; and (D) the need to provide the defendant with needed educational or vocational train ing, medical care, or other correctional treatment in the most effective manner. U.S.S.G. § 5D1.3(b)(l);4152;4152. A condition of supervised release need only be reasonably related to any one of these factors. United States v. Abrar, 58 F.3d 43, 46 (2d Cir.1995). It was within the district court’s authority to impose the challenged special conditions as part of Dupes’s sentence for his securities fraud offense. Each of the conditions — that Dupes attend sex offender treatment, register as a sex offender, keep a distance from children and the places where they usually congregate, and refrain from using the internet to download child pornography or promote sexual relations with children — is reasonably related to Dupe’s history and" }, { "docid": "5032091", "title": "", "text": "or more grams of cocaine base. Even if the court did have discretion, there was no error. On plain error review defendants must also show a “reasonable probability” that the sentence would have been more lenient had the disparity been taken into account. United States v. Matos, 531 F.3d 121, 122 (1st Cir.2008). There is not a whiff in this record that even if the court had discretion to reduce the mandatory minimum sentence on disparity grounds the court would have imposed a more lenient sentence. The district court’s judgment is affirmed. . The PSR also stated that the statutory mandatory life sentence also bumped his U.S. Sentencing Guidelines sentence up to a mandatory life sentence, under U.S.S.G. § 5G1.1(c)(2). . Normally, we review conditions of supervised release for abuse of discretion. United States v. Prochner, 417 F.3d 54, 62 (1st Cir.2005). . A district court may impose additional conditions of supervised release that are reasonably related to the sentencing factors in 18 U.S.C. § 3553(a)(1)-(2). See id. § 3583(d). Those factors include \"the nature and circumstances of the offense and the history and characteristics of the defendant” and the need for the sentence to \"afford adequate deterrence to criminal conduct,” \"protect the public from further crimes of the defendant,” and \"provide the defendant with ... correctional treatment in the most effective manner.” Id. § 3553(a)(1)-(2); see also id. § 3583(d); U.S.S.G. § 5D1.3(b). . \"When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.... Therapists and correctional officers widely agree that clinical rehabilitative programs can enable sex offenders to manage their impulses and in this way reduce recidivism.\" McKune, 536 U.S. at 33, 122 S.Ct. 2017. . The sentencing judge imposed two relevant conditions. Paragraph 5 of the supervised-release terms requires Sebastian to comply \"scrupulously” with all policies and procedures of any sex-offender treatment program as directed by a supervising officer. Paragraph 3 requires Sebastian to submit to a search of his premises if the supervising officer has reasonable basis \"to believe" }, { "docid": "9515221", "title": "", "text": "are justified by the high recidivism rate for offenders. Id. at 105, 123 S.Ct. 1140 (“[R]eeidivism is the statutory concern”). Yet Morales-Cruz made a conscious choice to defeat those purposes in three different jurisdictions. And he did so in two jurisdictions after he had already served time in prison for failing to register in New Jersey, and knew there would be a penalty for failure to register. These continuing failures certainly permit a rational inference that Morales-Cruz presented a recidivism risk and warranted deterrent punishment. His conduct undermined the efforts made by Congress in SORNA, and by the states in their statutes, to combat the risks of recidivism. In McKune v. Lile, 536 U.S. 24, 33, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), the Supreme Court noted that sexual offender treatment programs while in prison serve legitimate penological objectives of rehabilitation. It stressed the widespread agreement that such programs “can enable [defendants] to manage their impulses and in this way reduce recidivism.” Id. Given Morales-Cruz’s manifest lack of respect for the SORNA registration requirements, and the reasonable inference that his refusal to comply with these requirements poses a risk of recidivism, the district court’s imposition of sex-offender treatment was reasonably related to Morales-Cruz’s present offense as well as to his criminal history, which included a recent assault on an adult female. There was no abuse of discretion. To support his argument to the contrary, Morales-Cruz cites six cases in which courts of appeals reversed conditions of supervision. All are distinguishable. For example, none of the cases Morales-Cruz cites involve a defendant with a recent conviction for violence against a female victim. In four of these cases, the challenged conditions bore no relationship to the offense of conviction and the defendant’s recent criminal history provided no basis for the conditions. See United States v. Sharp, 469 Fed.Appx. 523 (9th Cir.2012) (sex-offender conditions reversed where defendant convicted of being a felon in possession of a firearm, no suggestion of prior sex offender registration convictions, and district court failed to provide justification for challenged conditions); United States v. Carter, 463 F.3d 526 (6th" }, { "docid": "18138765", "title": "", "text": "Sex Offender Treatment Program Prochner now argues that the district court erred in imposing the special condition that he participate, if so directed by the Probation Office and the Court, in a sex offender specific treatment program, because his conviction did not involve a sex-related offense and he has never been accused of sexual assault. A sentencing judge has the authority to impose any condition of supervised release that is “reasonably related to (1) the defendant’s offense, history, and characteristics; (2) the need to deter the defendant from further criminal conduct; (3) the need to protect the public from further crimes by the defendant; and (4) the effective educational, vocational, medical, or other correctional treatment of the defendant.” York, 357 F.3d at 20; see 18 U.S.C. § 3583(d)(1) (incorporating by reference 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D)); U.S.S.G. § 5D1.3(b)(1). Although these factors are connected by the “and” conjunction, see 18 U.S.C. § 3583(d)(1); U.S.S.G. § 5D1.3(b)(l), “the critical test is whether the challenged condition is sufficiently related to one or more of the permissible goals of supervised release.” York, 357 F.3d at 20 (quoting United States v. Brown, 235 F.3d 2, 6 (1st Cir.2000)) (emphasis in York); see also United States v. Barajas, 331 F.3d 1141, 1146 (10th Cir.2003) (noting that every circuit to have decided the issue has adopted this interpretation notwithstanding the conjunction “and”). Thus, the fact that the special condition of sex offender treatment is not related to the crime of conviction does not, by itself, render the condition invalid. See York, 357 F.3d at 20. Nothing contained in the statute underlying U.S.S.G. § 5D1.3 limits the condition of sex offender treatment just to individuals convicted of sex offenses. Id.; see 18 U.S.C. § 3583. There are, to be sure, limitations on the district court’s power to impose special conditions of supervised release. The condition can “involve[] no greater deprivation of liberty than is reasonably necessary” to achieve the purposes of supervised release, and it must be “consistent with any pertinent policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3583(d)(2), (3); U.S.S.G." }, { "docid": "18138768", "title": "", "text": "'in a sex offender treatment program, and participation if further ordered, was reasonably related to the purposes of supervised release. See York, 357 F.3d at 20. As noted, such purposes include the need to deter further criminal conduct, the need to protect the public from further crimes by the defendant, and the need to provide the defendant with needed training or effective correctional treatment. See 18 U.S.C. § 3583(d)(1); U.S.S.G. § 5D1.3(b)(l). The condition here was reasonably related both to the need, while Prochner was still under supervision, to protect the public from future potential crimes by Prochner (who had already committed a serious crime, albeit of a different kind) and the need to provide Prochner with whatever treatment he might need. Finally, the special condition relative to sex offender treatment did not involve, in Prochner’s case, any greater deprivation of liberty than is reasonably necessary for the purposes of supervised release. See 18 U.S.C. § 3583(d)(2), (3); U.S.S.G. § 5D1.3(b)(2). The district court did not require Prochner to register as a sex offender. The government reasonably interprets the court’s order as directing Pro-chner to participate in a sex offender treatment program only if, after a sex offender evaluation, the Probation Office and the Court conclude that participation is appropriate. When the district judge imposed the sentence, he recommended that Prochner be designated to a facility where he could undergo a sex offender evaluation. The court further stated that Prochner would only be required to participate, “if directed to do so by the Probation Office and the Court.” In conclusion, the treatment condition is not unreasonable nor do we think the court committed plain error in imposing it. 2. Contact with Minors Prochner also complains about the special conditions limiting his contact with minors during the term of supervised re lease: (1) the condition prohibiting Pro-chner “from engaging in an occupation, business or profession that would require direct supervision of children under the age of 18”; and (2) the condition prohibiting him from “hav[ing] any unsupervised contact with anyone under the age of 18.” As noted, he registered no complaint" }, { "docid": "22944838", "title": "", "text": "undergo psychosexual evaluation and any necessary treatment and not possess sexually explicit materials. A district court may impose any condition of supervised release “it considers to be appropriate” so long as certain requirements are met. 18 U.S.C. § 3583(d). First, the condition must be “reasonably related” to one of four factors: (1) the nature and characteristics of the offense and the history and characteristics of the defendant, (2) the deterrence of criminal conduct, (3) the protection of the public from further crimes of the defendant, and (4) the provision of needed educational or vocational training, medical care, or other correctional treatment to the defendant. Id. §§ 3583(d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D). Second, the condition cannot impose any “greater deprivation of liberty than is reasonably necessary” to advance deterrence, protect the public from the defendant, and advance the defendant’s correctional needs. See id. §§ 3583(d)(2), 3553(a)(2)(B), (a)(2)(C), (a)(2)(D). Finally, the condition must be consistent with the policy statements issued by the Sentencing Commission. Id. § 3583(d)(3). Weatherton contends that the conditions in question are not reasonably related to his FEMA fraud conviction, that his 1979 rape conviction is insufficient to support the need for the conditions, and that his 2007 arrest warrant cannot provide a basis for the conditions because it is an unsubstantiated allegation which the government abandoned as a basis for revocation. Because district courts must consider the defendant’s history and characteristics, they may take into account “a defendant’s prior conviction for a sex offense when imposing sex-offender-related special conditions when the underlying conviction is for a non-sexual offense.” United States v. Deleon, 280 Fed.Appx. 348, 351 (5th Cir.2008); see United States v. Dupes, 513 F.3d 338, 344 (2d Cir.2008) (upholding sex-offender related special conditions as part of sentence for securities fraud where they were reasonably related to defendant’s “history and characteristics as a sex offender, his need for treatment, and the public’s need for protection from him”); see also United States v. Prochner, 417 F.3d 54, 63 (1st Cir.2005) (“[T]he fact that the special condition of sex offender treatment is not related to the crime of conviction does" }, { "docid": "22175082", "title": "", "text": "the real victims of his crime and that time is required for the sex-offender treatment during incarceration that Blinkinsop needs for his child-pornography addiction. In addition to being procedurally correct, Blinkinsop’s imprisonment term, the lowest under the Sentencing Guidelines, is substantively reasonable, because it is well supported by the record and the governing law. II. Special Conditions of Supervised Release Blinkinsop concedes that he did not object at sentencing to the special conditions of his supervised release that he challenges on appeal. Therefore, our review is limited to plain error. United States v. Rearden, 349 F.3d 608, 618 (9th Cir.2003); see United States v. Sullivan, 451 F.3d 884, 894 (D.C.Cir.2006) (“Standing mute [after a sentence has been pronounced] is not an option, not if a litigant wishes to avoid a plain error standard of review on appeal.”). Under 18 U.S.C. § 3583(d), a district judge has discretion to order special conditions of supervised release that are “reasonably related to the factors” in 18 U.S.C. § 3553(a). Rearden, 349 F.3d at 618. Because the sentencing judge has all the evidence and impressions of a defendant’s credibility, we accord wide latitude to the judge’s imposition of supervised-release conditions, United States v. Daniels, 541 F.3d 915, 924 (9th Cir.2008), cert. denied, — U.S. --, 129 S.Ct. 1600, 173 L.Ed.2d 687 (2009), “including restrictions that infringe on fundamental rights,” United States v. Bee, 162 F.3d 1232, 1234 (9th Cir.1998). Special conditions are permissible, provided that “they are reasonably related to the goal[s] of deterrence, protection of the public, or rehabilitation of the offender, and involve no greater deprivation of liberty than is reasonably necessary for the purposes of supervised release.” Rearden, 349 F.3d at 618 (citation and internal quotation marks omitted); see United States v. T.M., 330 F.3d 1235, 1240 (9th Cir.2003) (“The conditions imposed run afoul of the supervised release statute because there is no reasonable relationship between them and either deterrence, public protection or rehabilitation.”). Blinkinsop has the burden of showing that the special conditions that he appeals “involve[] a greater deprivation of liberty than is reasonably required to achieve deterrence, public" }, { "docid": "16447302", "title": "", "text": "conjunction). So the fact that a condition of supervised release is not directly related to York’s crime of conviction does not render that condition per se invalid. York acknowledges these principles but argues that sex offender treatment is uniquely reserved for eases involving sex offenses. He points to U.S.S.G. § 5D1.3(d)(7), which provides that a special condition requiring the defendant’s participation in a sex-offender treatment program should be imposed “if the instant offense of conviction is a sex offense.” But this is little aid to York, as the Guidelines conspicuously do not say that sex-offender treatment is appropriate only if the underlying crime was a sex offense. In fact, the preamble to § 5D1.3(d) provides that the special conditions listed therein, including participation in a program for sex offenders, “are recommended in the circumstances described and, in addition, may otherwise be appropriate in particular cases.” (emphasis added). And nothing in the statute underlying § 5D1.3 limits the special condition of sex-offender treatment to defendants under prosecution for sex crimes. See 18 U.S.C. § 3583. There are, however, several limitations on a district court’s power to fashion special conditions of supervised release. We list a few. First, a special condition must in fact be tailored to the circumstances: it can involve “no greater deprivation of liberty than is reasonably necessary” to achieve the purposes of supervised release. U.S.S.G. § 5D1.3(b)(2). Second, the condition imposed must be consistent with .any pertinent policy statements from the Sentencing Commission. Id. Finally, the trial court’s decision to impose the challenged condition must have adequate evidentiary support in the record. Brown, 235 F.3d at 6; United States v. Thurlow, 44 F.3d 46, 46 n. 3 (1st Cir.1995) (per curiam). Given York’s criminal history and in light of the record in this case, which includes a threat of violence by York against yet another woman, the district court was well within its discretion in requiring York to participate in the sex offender treatment program. The condition that he attend sex-offender treatment is plainly related to his criminal history: York has twice been convicted for sexually assaulting young" }, { "docid": "22204564", "title": "", "text": "the enhancement itself is reasonable in that it focuses on the use of computers, which provide criminals with an effective method of communicating with a broad audience in connection with the specific crime of conviction. B. Dotson next argues that the court abused its discretion in providing for the possible use of physiological testing by devices such as a polygraph or penile pleth-ysmograph test in conjunction with his treatment. District courts have broad latitude to impose conditions on supervised release. Crandon, 173 F.3d at 127. In addition to a number of mandatory conditions, see 18 U.S.C.A. § 3583(d) (West 2000 & Supp. 2002), the sentencing court may impose any other condition it considers to be appropriate, as long as that condition is “reasonably related” to statutory factors referred to in. § 3583(d)(1). These factors are: “the nature and circumstances of the offenses and the history and characteristics of the defendant,” 18 U.S.C.A. § 3553(a)(1) (West 2000); providing adequate deterrence, see § 3553(a)(2)(B); protecting the public from further crimes, see § 3553(a)(2)(C); and providing the defendant with training, medical care, or treatment, see § 3553(a)(2)(D). Conditions imposed in connection with these factors must “involvef] no greater deprivation of liberty than is reasonably necessary” for achieving the specified goals, 18 U.S.C.A. § 3583(d)(2), and they must be consistent with Sentencing Commission policy statements on supervised release, see § 3583(d)(3). Because we have already noted that the plethysmograph test is “useful for treatment of sex offenders,” United States v. Powers, 59 F.3d 1460, 1471 (4th Cir. 1995), the district court clearly acted within its discretion in imposing this condition on Dotson’s release. The test also meets the “reasonably related” requirement in that it is aimed at providing Dotson with treatment, fostering deterrence, and protecting the public. See Berthiaume v. Caron, 142 F.3d 12, 17 (1st Cir.1998) (describing this usage of the plethysmograph as “an accepted tool” and “a standard practice” in the field of sex offender treatment); see also Walrath v. United States, 830 F.Supp. 444 (N.D.Ill.1993), aff'd, 35 F.3d 277 (7th Cir.1994) (holding that the use of the plethysmograph for treatment as" }, { "docid": "18138766", "title": "", "text": "the permissible goals of supervised release.” York, 357 F.3d at 20 (quoting United States v. Brown, 235 F.3d 2, 6 (1st Cir.2000)) (emphasis in York); see also United States v. Barajas, 331 F.3d 1141, 1146 (10th Cir.2003) (noting that every circuit to have decided the issue has adopted this interpretation notwithstanding the conjunction “and”). Thus, the fact that the special condition of sex offender treatment is not related to the crime of conviction does not, by itself, render the condition invalid. See York, 357 F.3d at 20. Nothing contained in the statute underlying U.S.S.G. § 5D1.3 limits the condition of sex offender treatment just to individuals convicted of sex offenses. Id.; see 18 U.S.C. § 3583. There are, to be sure, limitations on the district court’s power to impose special conditions of supervised release. The condition can “involve[] no greater deprivation of liberty than is reasonably necessary” to achieve the purposes of supervised release, and it must be “consistent with any pertinent policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3583(d)(2), (3); U.S.S.G. § 5D1.3(b)(2). Moreover, the court’s decision to impose the condition must have adequate evidentiary support in the record. York, 357 F.3d at 20; Brown, 235 F.3d at 6. While the record contains no direct evidence that Prochner has engaged in inappropriate conduct with minors, we find record support for imposition of the requirement that Prochner undergo evaluation for possible sex offender treatment. Prochner’s work history shows frequent contact with young boys. He was a YMCA youth sports director, and he ran a soccer program and a snowboarding program. Entries in the journal Prochner possessed at the time of his arrest indicate that he may have had, or, at minimum, desired to have, sexual relationships with adolescent males. Prochner took the position that these entries were simply literary expressions. A report by Prochner’s mental health expert and an evaluation by a clinical social worker, however, suggest that Prochner has a potential problem with adolescent males. Given this evidence, the court could reasonably believe that Prochner might pose a threat to children, and that evaluation for participation" }, { "docid": "23238476", "title": "", "text": "err in imposing Condition 5., A district court may impose special conditions of supervised release, provided that these conditions meet three requirements. First, post-release conditions must be reasonably related to the penological purposes set forth in 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D). See 18 U.S.C. § 3583(d). Specifically, special conditions “must be reasonably related to (1) the defendant’s offense, history and characteristics; (2) the need for adequate deterrence; (3) the need to protect the public from further crimes of the defendant; and (4) the need to provide the defendant with treatment.” United States v. Angle, 598 F.3d 352, 360-61 (7th Cir.2010); see also 18 U.S.C. § 3553(a)(l)-(2). Second, special conditions cannot involve a greater deprivation of liberty than is reasonably necessary to achieve the goals of deterrence, incapacitation, and rehabilitation. United States v. Holm, 326 F.3d 872, 876 (7th Cir.2003); see also 18 U.S.C. § 3583(d)(2). Third, the conditions must be “consistent with any pertinent statements issued by the Sentencing Commission.” 18 U.S.C. § 3583(d)(3). In assessing the appropriateness of special conditions, it also is useful to consider the rehabilitative objectives that supervised release serves. See United States v. Johnson, 529 U.S. 53, 59, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000) (“Supervised release fulfills rehabilitative ends, distinct from those served by incarceration.”). Placing “unduly harsh conditions [on supervised release] would, instead of facilitating an offender’s transition back into the everyday life of the community, be a significant barrier to a full reentry into society.” United States v. Perazza-Mercado, 553 F.3d 65, 71 (1st Cir.2009) (quotation marks and citation omitted). 1. Standard of Review Goodwin did not object to the imposition of these conditions. The parties dispute the effect of this failure to object on our standard of review, with the government arguing that plain-error review for forfeited claims ought to apply, see United States v. Tejeda, 476 F.3d 471, 474 (7th Cir.2007), and Goodwin countering that his lack of notice that the district court would impose these conditions absolves him of the responsibility to object in order to avoid plain-error review on appeal. The government claims that, in" } ]

[ { "docid": "8028098", "title": "", "text": "set bail or to stay the commitment order pending appeal. See 28 U.S.C. § 1826(b). On-the witnesses’ emergency motions, this court found the constitutional questions raised too substantial to justify characterizing the appeals as frivolous and ordered the witnesses admitted to bail. Appellants contend that the procedure attempted by the grand jury violated their fifth amendment privilege against self-incrimination. This is not the law. United States v. Wade, 388 U. S. 218, 222-223, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); cf. Gilbert v. California, 388 U.S. 263, 265-267, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), and Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). They further contend that the procedure violated their sixth amendment right to counsel. That contention is also without merit, particularly in view of the option extended to the appellants under which their attorneys would be permitted to be present. Cf. Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Appellants also urge that the compelled production of voice exemplars for the grand jury upon its subpoena violates their rights. under the fourth amendment. This argument raises an important and seemingly novel question. It is now settled that the fourth amendment is applicable to the grand jury process. Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906). That case dealt with the production of documents under a subpoena duces tecum. The Court believed that a grand jury “order for the production of books and papers may constitute an unreasonable search and seizure within the Fourth Amendment.” Id. at 76, 26 S.Ct. at 379. Applying the test of reasonableness, the Court held the subpoena to be overbroad, stating that, “A general subpoena of this description is equally indefensible as a search warrant would be if couched in similar terms.” Id. at 77, 26 S.Ct. at 380. Since Hale v. Henkel, courts have struck down grand jury subpoenas which were unreasonable under the fourth amendment. Schwimmer v. United States, 232 F.2d 855 (8th Cir.), cert. denied, 352 U.S. 833, 77 S.Ct. 48, 1 L." } ]

[ { "docid": "20577603", "title": "", "text": "OPINION AND ORDER RE WIRE TAP AUTHORIZATION KENNEDY, District Judge. Defendants are charged in a two-count indictment with violating Section 1955 of Title 18, United States Code (part of the statute more commonly known as the Omnibus Crime Control and Safe Streets Act of 1968), which prohibits large scale gambling operations where that activity is also a violation of state law. Certain defendants have moved to suppress the contents of judicially approved intercepted telephone conversations, as well as all evidence derived therefrom, on the grounds that the authorizations for the original and the extension orders approving those wire taps failed to conform with the requirements set forth in Section 2516 of Title 18, United States Code. Subsection (1) of that statute provides, in part: The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of [certain enumerated offenses]. Defendants contend that neither the original nor the extension authorizations were made by the Attorney General or an Assistant Attorney General specially designated by the Attorney General and that the court orders issued pursuant to those authorizations were thus improperly granted. At the hearing on the motions the Court denied the same insofar as they relate to the original authorization. The disclosures made by the Government in response to defendants’ motions indicate that, while that formal authorization was not actually signed by either the Attorney General or an Assistant Attorney General, the Attorney General had personally approved the authorization in a memo, signed by him, addressed to Mr. Will Wilson, then an Assistant Attorney General. The statute was thus complied with in that the Attorney General himself had approved the authorization for the request for the original" }, { "docid": "8676597", "title": "", "text": "1968, 18 U.S.C. § 2510 et seq., which permits wiretaps and other electronic surveillance as aids to crime detection. However, as a result of “the development of facts unknown until-the case was before” the court of appeals, the appeal was regarded as presenting “only the question of who may initiate an application to engage in such secret electronic surveillance under the authorization proviso of that legislation.” This provision, 18 U.S.C. § 2516(1), reads in pertinent part as follows: The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made. . . . Affidavits before the court indicated that Sol Lindenbaum, Executive Assistant to the Attorney General of the United States, had approved actions designating Will Wilson, then Assistant Attorney General in charge of the Criminal Division, to authorize a designated field official to apply to a federal judge for interception orders under 18 U.S.C. § 2518, and that Henry E. Petersen, then a Deputy Assistant Attorney General in the Criminal Division, had signed Will Wilson’s name “in conformity with the standard procedure of dispatching such a letter in every case in which Will Wilson had been specially designated on an ad hoc basis to authorize” the application. Pointing to a statement in S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin.News, pp. 2112, 2185, concerning § 2516(1) which we quote in the margin, the court ruled that, despite the general power of the Attorney General to delegate authority, 28 U.S.C. § 510, the purpose of the statute in regard to wiretaps had been subverted by what it considered a routine method of handling authorizations to apply for them in the Criminal Division of the Department of Justice, and reversed convictions" }, { "docid": "18166578", "title": "", "text": "to and from facilities described in the letter for a period of 15 days. These documents satisfied the probable cause requirements for issuing an intercept order and the recitations contained in them indicated that authorization to apply for the order had been granted as a result of procedures which complied with the requirements of 18 U.S.C. §§ 2516 and 2518. Section 2516 provides in part as follows: (1) The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, . . . .” On the motion to suppress evidence gained from these wiretaps it was shown that neither the Attorney General nor any assistant attorney general specially designated by him had authorized the application which resulted in the first wiretap order. Instead, Sol Lindenbaum, Executive Assistant to Attorney General John N. Mitchell, affixed Mr. Mitchell’s initials to a memorandum addressed to Acting Assistant Attorney General Petersen authorizing the application. It is maintained by the government that this procedure satisfies the requirements of § 2516 because Lindenbaum, was the “alter ego” of the Attorney General. On the other hand, appellants argue that the procedures of §§ 2516 and 2518 were carefully worked out by Congress and that one of the most important considerations was that the person approving authorization for wiretap applications not only be identifiable, but also be politically responsible. The Attorney General and all assistant attorneys general are appointed with the advise and consent of the Senate whereas the appointment of the executive assistant to the Attorney General is not subject to Senate confirmation. The Supreme Court has recently held that evidence which is obtained from an interception order based on the procedures followed in obtaining the first authorization in this case is subject to suppression. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341, (decided May 13, 1974)." }, { "docid": "9506090", "title": "", "text": "probable cause to search his residence. If that were so, there would be no reason to distinguish search warrants from arrest warrants, and cases like Chimel v. California, 395 U.S. 752 [89 S.Ct. 2034, 23 L.Ed. 2d 685] (1969), . . . would make little sense.” The Government argues that the searches can be upheld even though the warrants are invalid on the theory that the searches were incident to the arrests. They weren’t. The search of the automobile was accomplished at both a time and a place substantially removed from the arrest. Also, the search of the house substantially exceeded the scope permissible by Chimel, supra. The Government also argues that the search of the automobile could be sustained under the doctrine of Chambers v. Maroney (1970) 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. The facts do not bring the case within the Chambers ambit. There was no probable cause to believe the vehicle contained the fruit of the crime. There were no exigent circumstances justifying the search. (Coolidge v. New Hampshire (1971) 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564.) The evidence produced from the illegal search was highly incriminating. We cannot say that “beyond a reasonable doubt . . . the error complained of did not contribute” to the conviction. Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705. The judgment is reversed and the cause is remanded for a new trial. . AFFIDAVIT FOR SEARCH WARRANT LEWIS A. FAIN, being duly sworn, on his oath, deposes and says: That he is a Special Agent, Federal Bureau of Investigation; That he assisted in the investigation of the robbery of the Western Savings and Loan Association in Globe, Arizona, on or about April 2, 1971, and the kidnapping of the Gustafson family on the same date and that affiant also assisted in the apprehension of one of the suspects, namely, WILLIAM LLOYD BAILEY, in the above-described vehicle; That your affiant believes from his investigation and investigation of other Special Agents of the Federal Bureau of Investigation that a robbery" }, { "docid": "20643420", "title": "", "text": "this time, therefore, each defendant’s Motion for Relief from Prejudicial Joinder, is denied without prejudice. Should the need arise and the interest of justice so require, each defendant may renew his or her motion during the course of the trial. MOTIONS FOR DISCOVERY, BILL OF PARTICULARS, AND PRODUCTION AND INSPECTION OF ALL MATTERS WITHIN THE PURVIEW OF 18 U.S.C.A. § 2510 ET. SEQ. Defendants Marena, Morettini, Scirrotto, and Ennis have made substantially similar motions for discovery, bills of particulars, and production and inspection of all matters falling within the purview of 18 U.S.C.A. § 2510 et seq. Because the Government has continually consented to make available to the defendants all the tapes, transcripts, and documents which the defendants have a right to inspect, each defendant’s motions are largely mooted. To the extent that each defendant’s motions seek more than that already made available by the Government, they are denied. MOTION TO DISMISS Defendants Marena, Morettini, and Scirrotto have joined in identical motions to dismiss. Each motion alleges several grounds for dismissal of the indictment. None of the arguments advanced are substantial or supported by law. Each defendant’s motion to dismiss is, therefore, denied. . “The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal Agency having responsibility for the investigation of the offense as to which the application is made . . . .”18 U.S.C. § 2516(1) (1970). . Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). . United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). . In Re Dionisio, 442 F.2d 276 (7th Cir. 1971). . Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). . Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)." }, { "docid": "17588689", "title": "", "text": "analysis places an unjustifiable burden on limited judicial resources. Dawson v. Cow-an, 531 F.2d 1374 (6th Cir. 1976). . The trial judge ordered the investigation because there were strong indications that the first mistrial, when the jury was unable to reach a verdict, may have involved jury tampering. . In pertinent part, 18 U.S.C. § 2516(1) states that The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made . Order No. 495-72: By virtue of the authority vested in me by 28 U.S.C. 509, 510, 5 U.S.C. 301, and 18 U.S.C. 2516, the Assistant Attorney General in charge of the Criminal Division is specially designated to exercise the authority conferred by Section 2516 of Title 18, United States Code, to authorize applications to a Federal judge of competent jurisdiction for orders authorizing the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which such application is made, when such interception may provide evidence of any of the offenses specified in Section 2516 of Title 18, United States Code. The authority delegated herein to the Assistant Attorney General in charge of the Criminal Division shall be exercised by him only during my absence in Europe from November 12, 1972, to November 26, 1972, inclusive, and shall expire at the end of the latter day. November 8, 1972 /s/ Richard G. Kleindienst Attorney General . Order No. 495-72 is set out in full in note 7, supra. . 18 U.S.C. § 2518(1) requires: (1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation" }, { "docid": "22919540", "title": "", "text": "significant public policy favoring strict compliance with 18 U.S.C. § 2516(1), and the independent obligation of the courts to enforce that public policy, we think the course followed by Judge Blumenfeld, which permitted a full development of the facts, was a proper and even a preferable procedure to that utilized by the district court in the present case. The order denying a new trial on the ground of newly discovered evidence is affirmed, but without prejudice to a motion for relief under 28 U.S.C. § 2255. . United States v. Iannelli, 477 F.2d 999 (3d Cir. 1973). . Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). . 18 U.S.C. § 2516(1) provides in pertinent part that: The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of . See United States v. Iannelli, 339 F.Supp. 171, 174 n. 2 (W.D.Pa.1972); Lindenbaum Deposition at 22. . 28 U.S.C. § 2255 provides in relevant part that: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, . . . or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. A motion for such relief may be made at any time. The Supreme Court in Davis v. United States, 417 U.S. 333, 342-46, 94 S.Ct. 2298, 2304, 2305, 41 L.Ed.2d 109 (1974), held that a claim of error grounded in “the laws of the United States” rather than the Constitution" }, { "docid": "2358419", "title": "", "text": "made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information: (a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application!.] . The affidavit of Attorney General Mitchell read as follows: I held the office of Attorney General of the United States from January 21, 1969, through March 1, 1972. On January 8, March 10, April 19, and May 13, 1971, I personally initialed memo-randa authorizing applications for interception orders in this case. Copies of these memoranda are attached. Each memorandum also constituted a notification to the Assistant Attorney General of the Criminal Division that I had performed the discretionary act of authorizing an application to a judge of competent jurisdiction for the specified interception order. . Title III requires that: The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made * * * 18 U.S.C. § 2516(1). . The author agrees with Judge Bright’s concurring opinion in United States v. Brick, 502 F.2d 219 (8th Cir. 1974), that an evidentiary hearing would dispel the residual doubts as to the compliance with Title III. Section 2516(1) requires: * * * [Tjhat the authority * * * be exercised before the application is presented to a federal judge. * * * It would ill serve the congressional policy of having the Attorney General or one of his Assistants screening the applications prior to their submission to court to have the screening process occur after the application is made and after investigative officials have already begun to intercept wire or oral communications under a court order predicated on" }, { "docid": "23403275", "title": "", "text": "specifying the procedure to be followed in authorizing an application to a court of competent jurisdiction for such orders. One provision is 18 U.S.C. § 2516(1), which provides in pertinent part that “The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, . . . .” The other relevant sections are §§ 2518(1) (a) and 2518(4) (d), which require that the application to the court and the court order name the officer authorizing the application. After appellants’ counsel learned for the first time during the pendency of their appeal of certain disclosures made by the Government with respect to procedures followed by it in seeking interception orders in other cases, notably United States v. Robinson, 40 U.S.L.W. 2454 (5th Cir. 1972); United States v. Baldassari, et al., 338 F.Supp. 904 (M.D.Pa.1972); and United States v. Cihal, 336 F.Supp. 261 (W.D.Pa.1972), appellants suggested to us that letters authorizing applications to the district court for two interception orders in this case, one dated May 4, 1971 and the other May 12, 1971, which bore the purported signature of Assistant Attorney General Will Wilson, had not in fact been signed by him but had been signed by a deputy who affixed Wilson’s name to the letters. With respect to the May 4, 1971 wiretap order, it is undisputed that the application for the order was personally authorized by the then Attorney General of the United States, John N. Mitchell. On May 3, 1971, he initialed a memorandum to Will Wilson, Assistant Attorney General, specially designating Mr. Wilson pursuant to § 2516 to authorize Milton J. Carp, Attorney in Charge of the Organized Crime and Racketeering Section of the Department of Justice, to apply to the district court for an order permitting the interception of wire communications on two Yonkers telephones. Thereupon Henry E. Petersen, Deputy Assistant" }, { "docid": "23162622", "title": "", "text": "for it.’ ” Coolidge v. New Hampshire, supra, 403 U.S. at 454-455, 91 S. Ct. at 2032 (citations omitted). The Fourth Amendment was designed to protect individual privacy and at the same time accommodate the legitimate needs of law enforcement. But “[w]hen the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.” Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). Finally, nothing in the Fourth Amendment remotely implies that officers who, for the purpose of arrest, have intruded, albeit lawfully, upon the privacy of an individual without an arrest warrant, may further invade that privacy by searching without a warrant, otherwise required by the Fourth Amendment, in derogation of law, see Coolidge v. New Hampshire, supra, 403 U.S. at 480, 91 S.Ct. 2022 (opinion of Stewart); Chimel v. California, 395 U. S. 752, 766, n. 12, 89 S.Ct. 2034, 23 L. Ed.2d 685 (1969). Absent a warrant, the government assumes the burden of persuasion that at least one of the narrow exceptions to the Fourth Amendment warrant requirement applies to this case. The Government does not here suggest that a warrant was not needed because the officers were engaged in “hot pursuit,” Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L.Ed.2d 782 (1967); nor does it attempt to justify the warrant-less search under the “plain view” doctrine, Coolidge v. New Hampshire, supra. Moreover, the record does not disclose a fact pattern similar to the emergency situation which justified the warrantless intrusion in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); nor, of course, does this case demand application of the special rules pertaining to searches of automobiles, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). We are left, then, with only two possible theories under which the warrantless search involved here may be upheld:" }, { "docid": "21999925", "title": "", "text": "the Criminal Division was received in my office on April 6, 1970, and was reviewed and then transmitted by me to the Attorney General, that on the same day the Attorney General initialed the memorandum and that the file was picked up by David Holt.” The contents of this affidavit serve to fortify the conclusion which I have reached. Relitigation in this case has not been wholly worthless. The fuller consideration of the factual question at issue has resulted in a significant increase in the reliability of the findings made on the earlier motion. The petitioners’ motions are denied, and The stay of execution is terminated as of March 14th, 1975, at 12 noon, when the petitioners shall surrender themselves to the United States Marshal or his deputy at his office at Hartford. So ordered. . 18 U.S.C. § 2516(1) (1970) provides in relevant part: “The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made . . . .” . The nolo contendere pleas admitted every essential element of the offenses well pleaded in the charge and left nothing to be done but render judgments of conviction. Lott v. United States, 367 U.S. 421, 426, 87 S.Ct. 1563, 6 L.Ed.2d 940 (1961) ; cf. United States v. Doyle, 348 F.2d 715, 719 (2d Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965). Although none of the defendants who are party to this motion have yet served any part of the sentences which were imposed upon them, the imminence of incarceration is a sufficient basis for the exercise of habeas corpus jurisdiction. See Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) ; Preiser v. Rodriguez," }, { "docid": "8518031", "title": "", "text": "department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that— (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval.” 18 U.S.C. § 2518(10) (a). The defendants' motion to suppress considered herein is made on the basis that the conditions imposed by 18 U.S.C. § 2516(1) were not followed: “(1) The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications. . . ”. The defendants contend that neither the Attorney General, nor any Assistant Attorney General specially designated by the Attorney General, authorized the application to a Federal judge for the order authorizing or approving the interception of the communications involved herein. The application made to the Federal judge in the instant case contained a letter dated August 25, 1970, on the letterhead of the Department of Justice, Assistant Attorney General, Criminal Division, bearing the written signature “Will Wilson” above the typewritten designation “Will Wilson, Assistant Attorney General.” The letter recites: “Accordingly, you are hereby authorized, under the power specially delegated to me in this proceeding by the Attorney General of the United States, the Honorable John N. Mitchell, pursuant to the powers conferred on him by Section 2516 of Title 18, United States Code, to make application to a judge of competent jurisdiction for an order pursuant to Section 2518 of Title 18, United States Code, authorizing the Federal Bureau of Investigation to intercept wire communications from the above-described two telephones for a period of fifteen (15) days.” In response to the defendants’ request to compel admissions of fact" }, { "docid": "10673783", "title": "", "text": "Assistant United States Attorney, Philadelphia Strike Force, Organized Crime Division of the United States Department of Justice, and the affidavit of Edward D. Hegarty, Special Agent of the Federal Bureau of Investigation, - United States Department of Justice; an order was. entered by John W. Lord, Jr., Chief Judge of this district, which order, authorized the interception of telephone conversations on two telephone numbers (215 TU6-5999, 215 TU6-1429). Defendants’ primary argument is that the affidavit is not sufficient on its face to show probable cause and thus the Order authorizing the wire tap was illegal and any evidence obtained by the wire tap must be suppressed. Defendants’ second argument is that the statute circumscribing the issuance of the wire tap order was not complied with in that there was no showing that the Attorney General of the United States sanctioned the request and that the inventories were not filed within the proper time. Defendants also attack the constitutionality of the wire tap statute; however, no evidence was offered on this point. I will first consider the evidence offered to show that the application was properly made. Section 2516 of 18 U.S.C.A., Section 2516 (1968) reads in pertinent part as follows: “(1) The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of-— * -x- * -x- * * (c) any offense which is punishable under the following sections of this title: * * * section 1084 (transmission of wagering information) * * * •X* * * * * * (g) any conspiracy to commit any of the foregoing offenses.” At the hearing the Government offered two letters which were received in the regular course of" }, { "docid": "23403293", "title": "", "text": "note that Richards was in lawful possession of the package when it was seized. Cf. Rakas v. Illinois, 439 U.S. at 153, 99 S.Ct. at 435, 58 L.Ed.2d at 407 (Powell, J., concurring) (“property rights reflect society’s explicit recognition of a person’s authority to act as he wishes in certain areas, and therefore should be considered in determining whether an individual’s expectations of privacy are reasonable”). It is, therefore, not dispositive that Richards denied ownership of the package. Considering all the circumstances, we conclude that he had a legitimate expectation that the contents of the package were private, and has standing to assert fourth amendment protection. B. Border Search Under the fourth amendment, all warrantless searches and seizures are unreasonable except those conducted in a few narrowly defined situations where the circumstances justifying the search outweigh privacy rights. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v. Sink, 586 F.2d 1041 (5th Cir. 1978), cert. denied, 443 U.S. 912, 99 S.Ct. 3102, 61 L.Ed.2d 876 (1979). Because the fourth amendment expressly prohibits only unreasonable warrantless searches, it patently incorporates a balancing test, weighing in one measure the level of intrusion into individual privacy and in the other the public interest to be served. United States v. Martinez-Fuerte, 428 U.S. 543, 555, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116, 1126-1127 (1976); United States v. Himmelwright, 551 F.2d 991, 994 (5th Cir.) cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). Thus, a warrantless search is justified when it is incident to a lawful arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); when it is conducted with probable cause under exigent circumstances, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); when it involves a vehicle, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); or when it is made for administrative purposes to satisfy a special governmental need and necessity outweighs the invasion entailed, Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d" }, { "docid": "13280601", "title": "", "text": "the United States Attorney for interceptions to be conducted by D. C. law enforcement authorities as part of an investigation of suspected violations of certain specified serious D.C. crimes. See 23 D. C.Code § 546 (1973). The U.S.Code provision applies to applications authorized by the Attorney General or an Assistant Attorney General for interceptions to be conducted by a federal law enforcement agency investigating certain specified serious federal crimes, as well as to applications for wire interception authorization submitted by state law enforcement agencies. See 18 U.S.C. § 2516(1) & (2) (1970). The court has been advised that both the D.C.Code and the U. S.Code provisions were used to obtain judicial authorization for incriminating wire interceptions in this case. See text at note 4 infra. . See transcript of proceedings on motions to suppress, Sept. 11-12,1973, at 30-31. . Brief for appellant at 4-5; brief for appel-lees at 12. . Applications for judicial approval of wire interceptions conducted by D.C. law enforcement authorities in investigating suspected violations of the D.C.Code must be approved by the United States Attorney for the District of Columbia or any of his designated assistants. See 23 D.C.Code §§ 541(11) & 546 (1973) and note 2 supra. . United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974). . Cf. Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). . 18 U.S.C. § 2518(1) (b) (1970). 23 D.C. Code § 547 (a) (2) imposes the same requirement. . 18 U.S.C. § 2518(1) (e). 23 D.C.Code § 547 (a) (3) also imposes this requirement. . 18 U.S.C. § 2518(1) provides in full: (1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such applica tion. Each application shall include the following information: (a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application ; (b) a full and" }, { "docid": "20645396", "title": "", "text": "of a misleading of (defendants) to their harm is strikingly absent.” Spivak v. United States, 370 F.2d 612, 615 (2d Cir. 1967), cert. denied, 387 U.S. 908, 87 S.Ct. 1690, 18 L.Ed.2d 625 (1967). See also, Freedman v. The Concordia Star, 250 F.2d 867, 869 (2d Cir. 1958); Talanoa v. Immigration and Naturalization Service, 397 F.2d 196, 200-201 (9th Cir. 1968). It is therefore unnecessary to decide whether, if otherwise applicable, estoppel is a good defense against the United States in a criminal proceeding. See, e. g., Peignand v. Immigration and Naturalization Service, 440 F.2d 757, 761 (1st Cir. 1971). Finally, the defendants contend that the original Florida wiretap, and as a result that made subsequently in Connecticut which relied in part upon it, are invalid because the Government did not present to the issuing judge in Florida the personally initialed memorandum of Attorney General Mitchell. The defendants seem to attach significance to the fact that the Florida court had no evidence before it from which it could have concluded that the Attorney General himself authorized the application. But a reading of Pisacano makes it clear that the Court of Appeals was primarily concerned with whether in fact the appropriate official authorized the application. The failure to present the Attorney General’s memorandum to the issuing judge in the Florida proceeding is deemed immaterial. The motions of the defendants to suppress the wiretap evidence and to dismiss are denied. So ordered. . 18 U.S.C. § 2516(1) reads in pertinent part as follows: “The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section. 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made . . . .” . The language quoted is from the Connecticut application. Paragraph 2 of the Florida application is worded slightly differently." }, { "docid": "13280586", "title": "", "text": "clear language of Sections 547(a)(5) and 2518(1)(e). Section 2518(1), after which Section 547(a) was fashioned for District of Columbia law enforcement, is part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 197, 211-225, 18 U.S.C. §§ 2510-2520 (1970). The “fundamental policy adopted by Congress on the subject of wiretapping and electronic surveillance” by its enactment of Title III “is strictly to limit the employment of those techniques of acquiring information,” Gelbard v. United States, 408 U.S. 41, 47, 92 S.Ct. 2357, 2361, 33 L.Ed.2d 179 (1972), to conform with the commands of the Fourth Amendment as articulated by the Supreme Court in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). To effectuate that policy, “Title III authorizes the interception of private wire and oral communications, but only when law enforcement officials are investigating specified serious crimes and receive prior judicial approval, an approval that may not be given except upon compliance with stringent conditions.” Gelbard v. United States, supra, 408 U.S. at 46, 92 S.Ct. at 2360. One of these “stringent conditions”— that applications for judicial approval of wire interceptions to be conducted by federal investigative agencies must be authorized by the Attorney General or a specially designated Assistant Attorney General, 18 U.S.C. § 2516(1) (1970)— was recently considered and construed by the Supreme Court in strict accordance with the statutory language in United States v. Giordano, supra. The Supreme Court in Giordano unanimously refused to accept the Government’s attempt to stretch the language of Section 2516(1) to permit the Attorney General to delegate his interception authorization power to any subordinate Justice Department official. The Court stressed that “Congress legislated in considerable detail in providing for applications and orders authorizing wiretapping” and thereby “evinced the clear intent to make doubly sure that the statutory authority be used with restraint and only where the circumstances warrant the surreptitious interception of wire and oral communications.” .The Court refused, therefore, to sanction an attempt" }, { "docid": "5693433", "title": "", "text": "found in an open safe. On December 22, 1982, an indictment was filed in the Central District of California. On February 10, 1983, the Honorable Manuel Real denied defendants’ motions to suppress and, based on stipulated facts, convicted Camp and Harp on all charges except attempting to distribute heroin. A timely appeal was noticed on March 3. II Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 211-25, 18 U.S.C.A. §§ 2510-2520 (1983), prescribes the procedure for securing judicial authority to intercept wire communications in certain criminal investigations. Section 2516(1) confers power on the “Attorney General, or any Assistant Attorney General specially designated by the Attorney General” to “authorize an application to a Federal judge ... for ... an order authorizing or approving the interception of wire or oral communications” by federal investigative agencies seeking evidence of specified serious offenses. 18 U.S.C.A. § 2516(1) (1983) (emphasis added). The Supreme Court has held that this statute does not empower the Executive Assistant to the Attorney General to authorize wiretap applications, even where the Attorney General has specifically wanted him to do so. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). The Ninth Circuit reached the same conclusion earlier. United States v. King, 478 F.2d 494 (9th Cir.1973), cert. denied, 417 U.S. 920, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). The Supreme Court reasoned: Congress legislated in considerable detail in providing for applications and orders authorizing wiretapping and evinced a clear intent to make doubly sure that the statutory authority be used with restraint and only where the circumstances warrant the surreptitious interception of wire and oral communications____ The mature judgment of a particular responsible Department of Justice official is interposed as a critical precondition to any judicial order. Giordano, 416 U.S. at 515-16, 95 S.Ct. at 1826-27. The Court quoted applicable legislative history: Paragraph (1) [i.e. § 2516(1)] ... centralizes in a publicly responsible official subject to the political process the formulation of law enforcement policy on the use of electronic surveillance techniques. Centralization will avoid" }, { "docid": "18925358", "title": "", "text": "that responsibility was fixed with the FBI. Conversations were monitored in FBI facilities; FBI agents were in charge of sealing and preserving tapes and reporting daily the progress of the investigation to the prosecutor. Although the issue of cross-agency monitoring between federal agencies is one of first impression, federal agents have been permitted to assist, without prior court approval, in the monitoring of wiretaps conducted by state agents. United States v. Manfredi, 488 F.2d 588, 601 (2d Cir.1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1973) (no violation of state or federal law where federal narcotics agents assist in monitoring interceptions pursuant to order assigning responsibility to state narcotics law enforcement officers). Accord United States v. Bynum, 763 F.2d 474, 476-77 (1st Cir.1985) (federal statute not violated where DEA solely responsible for conducting and monitoring wiretaps intercepts and state officers operating monitoring equipment were deputized U.S. Marshals under control and direction of DEA). In the case at hand, Spanish-speaking agents were needed to monitor the communications involving the Peruvian and Colombian targets. While the better practice would have been to seek prior court approval of the use of DEA and Border Pa trol agents as monitors, no statutory violation requiring suppression has occurred. Jackson has demonstrated no prejudice to himself and the spirit of the statutory requirement has been met. Accordingly, the motion is denied. VII. Defendants’ Motion To Suppress for Violation of 18 U.S.C. 2516(1) Whitney, Diebert and Dodson move to suppress evidence derived from wiretaps on which calls to which they were a party were intercepted on the basis that the government failed in three respects to comply with 18 U.S.C. § 2516(1) which provides, in pertinent part: The Attorney General, Deputy Attorney General, Associate Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications ... A. Authorization of Applications J and K by" }, { "docid": "2358420", "title": "", "text": "and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made * * * 18 U.S.C. § 2516(1). . The author agrees with Judge Bright’s concurring opinion in United States v. Brick, 502 F.2d 219 (8th Cir. 1974), that an evidentiary hearing would dispel the residual doubts as to the compliance with Title III. Section 2516(1) requires: * * * [Tjhat the authority * * * be exercised before the application is presented to a federal judge. * * * It would ill serve the congressional policy of having the Attorney General or one of his Assistants screening the applications prior to their submission to court to have the screening process occur after the application is made and after investigative officials have already begun to intercept wire or oral communications under a court order predicated on the assumption that proper authorization to apply for intercept authority had been given. United States v. Giordano, 416 U.S. 505, 523, 94 S.Ct. 1820, 1831, 40 L.Ed.2d 341, 358 n. 12 (1974) (Emphasis included.). He would go a step further and remand for such a hearing, but a majority of this Court has decided that a remand is unnecessary. . 18 U.S.C. § 2518(8)(d) reads as follows: (d) Within a reasonable time but not later than ninety days after the filing of an application for an order of approval under section 2518(7)(b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of— (1) the fact of the entry of the order or the application; (2) the date of the entry and" } ]

[ { "docid": "1440144", "title": "", "text": "26, 1999, Defendants filed their Form 10 which revealed that they needed to raise additional funds. (See Compl. at ¶ 63-64.) At the news of financial difficulties, the company’s stock plunged 37 percent to $7.3125 on heavy trading of 412,000 shares. (See PI. Suppl. Mem., Ex. B.) The Court concludes that the facts .alleged in the complaint are plainly sufficient to allege a cause and effect relationship between disclosures of unexpected events and an immediate response in the stock price. Therefore, Plaintiffs have fulfilled the fifth factor in the Cammer test and, thus, have adequately pleaded the element of reliance. Thus, it appears to the Court that Plaintiffs have sufficiently alleged the elements of a claim of securities fraud at this stage in the proceedings. D. Defendants’ Motion to Strike Federal Rule of Civil Procedure 12(f) provides that in its answer to the pleadings, the moving party may request that the court “order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” “Immaterial” means that the matter has no bearing on the controversy before the court. See Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993) rev’d on other grounds, 510 U.S. 517, 534-35, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). If there is any doubt as to whether the allegations might be an issue in the action, courts will deny the motion. See id. “Impertinent” has been defined as allegations that are not responsive or irrelevant to the issues that arise in the action and which are inadmissible as evidence. See id. “Scandalous” includes allegations that cast a cruelly derogatory light on a party or other person. See Skadegaard v. Farrell, 578 F.Supp. 1209, 1221 (D.N.J.1984). In the present case, Defendants request that the Court strike several portions of the complaint that make reference to either the past activities of Defendants Magliarditi and Rebeil, the circumstances of the separation of Defendants and Deloitte and Touche, or the “reverse merger.” (See Mot. to Strike Mem. at 1-2.) Just as with a motion to dismiss for failure to state a claim, the Court must" } ]

[ { "docid": "5793560", "title": "", "text": "Defendants assert that plaintiff has abused informa pauperis status by filing a frivolous or malicious lawsuit. Pursuant to 28 U.S.C. §§ 1915(a) and (d), the district court may, in its discretion, dismiss an in forma pauperis action if the court determines that the plaintiff instituted the suit to harass the defendant or if the action has no rational basis in law or. fact. In the instant case, this Court is unable to find that plaintiff brought her action to harass defendants or that she lacked reason to -believe that she had a valid Title VII claim. - While plaintiff never reported her allegations of harassment, it is not this Court’s duty to determine whether or not the alleged acts occurred, or if she had a rational basis for thinking that defendants discriminated against her. III. The Request to Strike Allegedly Scandalous and Immaterial Matter in the Complaint Pursuant to Fed.R.Civ.P. 12(f), defendants seek to strike immaterial and scandalous ma terial in the complaint and to amend the caption by removing the names of the individual defendants. The Court will address this matter, since the request remains at issue regardless of the dismissal of the suit. While the Court recognizes that plaintiffs sexual harassment claims arise from unproven and unreported events that allegedly occurred over twenty years ago, the Second Circuit has stated clearly that district courts should be wary when deciding whether to grant a Rule 12(f) motion on the ground that the matter is impertinent and immaterial. See Lipsky v. Com. United Corp., 551 F.2d 887, 893 (2d Cir.1976). Accordingly, courts must deny such á motion, “unless it can be shown that no evidence in support of the allegation would be admissible.” Id. at 893; see also Gleason v. Chain Service Restaurant, 300 F.Supp. 1241 (S.D.N.Y.1969), aff'd, 422 F.2d 342 (2d Cir.1970). In the instant matter, that is simply not the case, for plaintiff certainly could testify as to the alleged harassment. Therefore, the exception enabling the striking of such material is not applicable. IV. The Request to Seal the File Defendants also seek to seal the complaint. The" }, { "docid": "18527850", "title": "", "text": "discharge clearly implicate her in the improper performance of her duties. See Chiavarelli v. Williams, 256 A.D.2d 111, 113, 681 N.Y.S.2d 276 (1st Dep’t 1998) (finding that “the challenged statements must be more than a general reflection upon [the plaintiffs] character or qualities, and must suggest improper performance of his duties or unprofessional conduct”) (internal quotation marks omitted). Thus, the Plaintiff has met her burden, at this stage, to satisfy all of the elements of a defamation claim under New York law. Accordingly, the individual Defendants’ motions to dismiss the Plaintiffs defamation claim are denied. H. Defendants’ Motions to Strike Fed.R.Civ.P. 12(e) permits a court to strike from a pleading “any redundant, immaterial, impertinent, or scandalous matter.” Ricketts v. City of Hartford, 74 F.3d 1397, 1415 (2d Cir.1996). “Typically, to prevail on a Rule 12(f) motion, the defendant must demonstrate ... that the allegations have no bearing on the issues in the case, and that to permit the allegations to stand would result in prejudice to the movant.” Dolan v. Fairbanks Capital Corp., 2008 WL 4515932, at *1 (E.D.N.Y. Sep.30, 2008). “Motions to strike are generally disfavored, and should be granted only when there is a strong reason for doing so.” Id. at 11 (internal citation omitted). The School District and Licopoli argue that the Plaintiff cannot maintain a religion-based hostile work environment claim, and therefore, the allegations pertaining to Licopoli’s alleged anti-Semitic remarks should be stricken from the Amended Complaint. Nagler argues that the allegations contained in ¶¶ 9,13, 16-22, 25, and 26 pertaining to his alleged offensive conduct must also be stricken. The Court disagrees. Although the Plaintiffs religion-based hostile work environment claim has been dismissed, the allegations underlying that claim are still relevant to establishing the overall office environment. The allegations that Nagler seeks to strike are self-evidently material because they relate to the Plaintiffs surviving gender-based hostile work environment claim and her retaliation claims. Accordingly, the Defendants’ motions to strike parts of the Amended Complaint are denied. III. CONCLUSION Based on the foregoing, it is hereby ORDERED, that the Defendants’ motions to dismiss are GRANTED as" }, { "docid": "14167084", "title": "", "text": "Mintz has moved this court to strike paragraph 55 of the complaint as “scandalous matter” under Rule 12(f) of the Federal Rules. I have decided to deny this motion. Paragraph 55 states in relevant part: On information and belief, just prior to that [administrative] hearing, defendants Farrell and Mintz attempted to suborn perjury from witnesses scheduled to attend the aforesaid DOC hearing. Their subornation was done in furtherance of defendants’ conspiracy. I start with the proposition that “[mjotions to strike alleged redundant, immaterial, impertinent or scandalous matter are not favored. Matter will not be stricken from a pleading unless it is clear that it can have no possible bearing upon the subject matter of the litigation.” 2A Moore’s Federal Practice ¶ 12.21 at p. 2429 (1983) (footnotes omitted). Defendant argues that paragraph 55 is scandalous in that it “improperly and excessively impugn[s] his moral character” without factual basis. Scandalous pleading for purposes of Rule 12(f) must “reflect cruelly” upon the defendant’s moral character, use “repulsive language” or “detract from the dignity of the court.” Id. at p. 2426 (footnote omitted). I do not believe that paragraph 55 should be stricken under this standard. To be scandalous such “degrading charges [must] be irrelevant, or, if relevant, [must be] gone into in unnecessary detail____” Id. at 2427. I find paragraph 55 to be neither unnecessarily derogatory nor irrelevant to charges alleged by plaintiff in this action. In sum, I have concluded, first, that plaintiff’s claims are timely under New Jersey’s six year statute of limitations; second, that her claims are not barred by the equitable doctrine of laches; third, that she does not proceed under Title VII but instead states a claim for relief under the Equal Protection Clause of the Fourteenth Amendment; fourth that the complaint alleges a deprivation of plaintiff’s, rights by defendants acting “under color of state law” for purposes of 42 U.S.C. § 1983; fifth, that plaintiff is a member of a class protected by § 1985(3); and sixth, that she has properly alleged a conspiracy, motivated by class-based discriminatory animus, to deprive her of her rights to" }, { "docid": "10722595", "title": "", "text": "on false or misleading advertising and unfair business practices “must be evaluated from the vantage of a reasonable consumer.” Id. Here, plaintiffs state a claim under California law for false advertising and unfair business practices based on their allegations that defendants’ advertisements misleadingly imply that the Franklin Mint products are endorsed by or affiliated with Princess Diana, her Estate or the Fund. In addition, plaintiffs satisfactorily allege that defendants advertisements misleadingly suggest proceeds will be donated to the Fund. Whether consumers have been or will be misled is a factual question that cannot be resolved on a motion to dismiss. Accordingly, defendants’ motion to dismiss the Fifth Claim for relief is denied. B. Motion to Strike Before filing a responsive pleading, a party may move to strike “any insufficient defense or any redundant, immaterial, impertinent or scandalous matter.” Fed. R.Civ.P. 12(f). “ ‘Immaterial’ matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded. [ ] ‘Impertinent’ matter consists of statements that do not pertain, and are not necessary, to the issues in question.” Fantasy Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993) (citations omitted), rev’d on other grounds, Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). While motions to strike are typically disfavored, a motion is well-taken where “it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.” LeDuc v. Kentucky Central Life Ins. Co., 814 F.Supp. 820, 830 (N.D.Cal.1992). 1. “Vultures Feeding on the Dead” Defendants move to strike plaintiffs’ allegation that defendants are “[l]ike vultures feeding on the dead.” See First Amended Complaint, ¶ 1. This language is immaterial and impertinent as it has no bearing whatsoever on the legal issues presented. Princess Diana’s death caused an emotional outpouring around the world. This action will undoubtedly continue to be the subject of media scrutiny, and there is no need to couch the material allegations of the First Amended Complaint in language that serves only to fan the flames in this" }, { "docid": "20302461", "title": "", "text": "F.2d 1343, 1349 (11th Cir.1988))). The DESCO Defendants’ argument that the Court should not strike the negative defenses because Lane has not shown prejudice is unavailing, because a movant is not required to show prejudice to prevail on a motion to strike. Rule 12(f) states: (f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading. Fed.R.Civ.P. 12(f). The rule does not require that a movant show prejudice, and the advisory committee notes do not contemplate such a requirement. Moreover, the United States Court of Appeals for the Ninth Circuit has expressly rejected requiring a movant to show prejudice to prevail on a motion to strike. See Atlantic Richfield Co. v. Ramirez, 176 F.3d 481, 1999 WL 273241, at *2 (9th Cir.1999) (“Rule 12(f) says nothing about a showing of prejudice and allows a court to strike material sua sponte. We decline to add additional requirements to the Federal Rules of Civil Procedure when they are not supported by the text of the rule.” (citations omitted)). Moreover, the United States Court of Appeals for the Tenth Circuit has not included prejudice among the elements a litigant must show to prevail on a motion to strike. On the contrary, in Burrell v. Armijo, 603 F.3d 825 (10th Cir.2010), in which the Tenth Circuit recently affirmed a district court’s granting a defendant’s motion to strike part of a plaintiffs complaint, the Tenth Circuit did not require the movant to show prejudice: [T]he district court granted the defendants’ motion under Fed.R.Civ.P. 12(f) and struck several paragraphs of the complaint. See Fed.R.Civ.P. 12(f) (authorizing a court to strike any portion of a pleading that is “redundant, immaterial, impertinent, or scandalous”). On appeal, the Bur-rells argue that the district court erred in granting the motion to strike because the stricken paragraphs are related to their claims." }, { "docid": "14802503", "title": "", "text": "at *4, 2000 U.S. Dist. LEXIS 2002, at *13. As we have already decided that Chou adequately pleaded unjust enrichment by Roizman, she may also pursue against him the related theory of breach of an implied agreement. However, Chou would be well advised on remand to avoid redundant claims. Our determination that she has adequately stated claims based on these theories does not entitle her to recover separate damages for each of these claims if she were to prevail at trial; we merely decide that she has sufficiently stated claims based on these theories. Chou, however, did not adequately plead unjust enrichment by the University, and therefore her claim against it for breach of an implied-in-law agreement similarly fails. D. Miscellaneous 1. Academic Theft and Fraud The district court struck Chou’s allegations of academic theft and fraud under Fed.R.Civ.P. 12(f). We conclude that the court did not abuse its discretion in striking those allegations from the complaint because they are redundant and immaterial to her complaint. Rule 12(f) allows the court to strike “from any pleading any ... redundant, immaterial, impertinent, or scandalous matter.” Chou’s recourse for violation of the University’s academic fraud policy is in the first instance through the University’s systems of governance, not through litigation. If her allegations are true, Chou may obtain relief through her other state law claims. We therefore affirm the court’s decision to strike these allegations under Rule 12(f). 2. Case Reassignment We decline to remand this case to the Executive Committee for the United States District Court for the Northern District of Illinois pursuant to its Local Rule 40.5 for reassignment to a different judge. Chou has not shown that the district court judge displayed “deep-seated favoritism or antagonism” that would make fair judgment impossible. Liteky v. United States, 510 U.S. 540, 554-556, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Chou made an excessive number of overlapping federal and state claims. Her amended complaint alone consists of fifty-six pages, two hundred and nineteen separately enumerated paragraphs, and nineteen different prayers for relief. Sorting out the issues has been no easy task. In" }, { "docid": "5035353", "title": "", "text": "that it cannot avail as a defense, or if under any contingency it may raise an issue. * * * I am not in any sense passing on the facts, but it seems to me that they do raise an issue and can be availed of as a defense. * * * “The allegations of the several portions of the defendant’s answer, which plaintiff seeks to strike, are not impertinent or scandalous, but are material to the several defenses alleged and must be considered by the court.” In another case, when the same judge was sitting, in Sano Petroleum Corporation v. Shell Oil Co., D.C.E.D.N.Y., 3 F.R.D. 181, 182, the court said this: “Motions to strike under Rule 12(f) * * * are not favored, and usually will be granted only when the allegations have no relation to the controversy, and a failure to strike will unduly prejudice the adverse party.” Again, in Westmoreland Asbestos Co. v. Johns-Manville Corp., D.C.S.D.N.Y., 30 F.Supp. 389, 392, there was a statement as follows: “The defendants move for an order, pursuant to Rule 12(f) of the Rules of Civil Procedure to strike certain specified matter from the complaint on the ground that it is redundant, immaterial, impertinent and scandalous. “In Securities and Exchange Commission v. Time-trust, Incorporated et al., D.C., 28 F.Supp. 34, * * * it was held that the mere presence of redundant and immaterial matter, not affecting the substance, is not in itself sufficient ground for granting a motion to strike such matter from the complaint. Further, that where no harm will result from immaterial matter not affecting the substance, the court should hesitate to disturb a pleading. “The motion to strike certain specified matter from the complaint should be denied with two exceptions.” Y. (3) Impertinent. In 1 Moore, Federal Practice, page 660, the learned author made this statement: “It should be noted that under sub-division (f) [of Rule 12] a court should hesitate to strike matter unless it clearly appears to be ‘redundant, immaterial, impertinent and scandalous’. Thus, where certain evidential facts, when read with the bill as a" }, { "docid": "20302462", "title": "", "text": "about a showing of prejudice and allows a court to strike material sua sponte. We decline to add additional requirements to the Federal Rules of Civil Procedure when they are not supported by the text of the rule.” (citations omitted)). Moreover, the United States Court of Appeals for the Tenth Circuit has not included prejudice among the elements a litigant must show to prevail on a motion to strike. On the contrary, in Burrell v. Armijo, 603 F.3d 825 (10th Cir.2010), in which the Tenth Circuit recently affirmed a district court’s granting a defendant’s motion to strike part of a plaintiffs complaint, the Tenth Circuit did not require the movant to show prejudice: [T]he district court granted the defendants’ motion under Fed.R.Civ.P. 12(f) and struck several paragraphs of the complaint. See Fed.R.Civ.P. 12(f) (authorizing a court to strike any portion of a pleading that is “redundant, immaterial, impertinent, or scandalous”). On appeal, the Bur-rells argue that the district court erred in granting the motion to strike because the stricken paragraphs are related to their claims. We have thoroughly reviewed the portion of the complaint at issue and conclude that none of it is relevant to the question of sovereign immunity, the resolution of which moots the parties’ appellate arguments on the § 1981 and § 1985 claims. In addition, the Burrells do not argue that the order prejudiced them in their presentation of evidence at trial. Accordingly, even if the court erred in striking portions of the complaint — which we do not suggest — any error was harmless. Burrell v. Armijo, 603 F.3d at 836. Rather than imposing a requirement that the movant show prejudice, the Tenth Circuit discussed prejudice only in regard to the respondent not showing any as a basis for protesting the decision — a logical inquiry to determine whether the material was “redundant” or “immaterial,” because striking non-duplica-tive, material allegations would likely prejudice a party’s ability to present his or her case. Professors Wright and Miller assert: The district court possesses considerable discretion in disposing of a Rule 12(f) motion to strike redundant, impertinent, immaterial," }, { "docid": "16626619", "title": "", "text": "is unjustifiably prolix and that it contains much argumentative, redundant, immaterial and impertinent matter. It does state a cause of action. It is plain in the sense that it states understandingly a cause of action in equity based upon alleged fraud and conspiracy. It is not “a short and plain” statement of a claim, nor is each averment in the pleading “simple, concise, and direct.” The diligence of the draftsman is apparent, but it seems that this has led to the inclusion of many improper allegations. It is urged that neither under the present nor the former applicable Equity Rules is there any provision authorizing the striking of an entire complaint. It is not necessary to decide this question, though it is believed that the court has this authority. Polk v. Mutual Reserve Fund Life Ass’n, C.C., 119 F. 491; Id., C.C., 128 F. 524; Kelley v. Boettcher, 8 Cir., 85 F. 55. The motion to strike the entire complaint is denied. This applies to the separate averments. It is sufficient to pass upon the 'motions to strike certain specific paragraphs and portions of the complaint, and the basis for decision thereon is found in Federal Procedure Rule 12 (f) and the inherent authority of the court. This rule permits striking from any pleading “any redundant, immaterial, impertinent, or scandalous matter * * This follows former Equity Rule 21, save that it adds the word “immaterial,” which in some instances may and in others may not have been included in the word “redundant.” The particular applications of this rule to the matters hereinafter decided will be noted. It is not the purpose or the duty of the court to re-draft a pleading. The matter in law presents many difficulties, and much time has been occupied in the effort to show wherein the faults in this pleading lie. Certain allegations are to be entirely stricken as in violation of the rule and numerous paragraphs are directed to be re-drawn because it is impracticable to eliminate certain improper parts. My conclusions are that: 1. Paragraph VIII (c) should be stricken, as repetitious." }, { "docid": "11563162", "title": "", "text": "Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)); United Bhd. of Carpenters v. Scott, 463 U.S. 825, 833, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983). A. Horaist’s conspiracy claim seems to reference title VII violations exclusively: “Defendants conspired with one another to create a pretext for DEBBIE’s termination and conspired with each other to cover up the retaliatory discharge.” To the extent the claims stem from title VII, she may not use § 1985(3) as a remedy. B. Horaist attempts to evade Novotny’s bar by explaining that her § 1985(3) claim includes her state law claims for breach of contract, tortious interference with contract, intentional infliction of emotional distress, discrimination, retaliation, and battery. Although, as we have said, the latter five claims are time-barred, the breach of contract claim remains before the district court. We need not consider whether § 1985(3) protects against interference with state contractual rights, because Horaist’s conspiracy claim so plainly lacks the necessary element of invidious discrimination. “In this circuit, we require an allegation of a race-based conspiracy” to present a claim under § 1985(3). Bryan v. City of Madison, 213 F.3d 267, 276 (5th Cir.2000), cert. denied, — U.S. —, 121 S.Ct. 1081, 148 L.Ed.2d 957 (2001). Horaist has alleged no racial animus, so her claim fails; the district court correctly dismissed it under Fed.R.Civ.P. 12(b)(6). The judgments and orders appealed from are AFFIRMED, and this matter is REMANDED for further proceedings. . See Fed.R.Civ.P. 54(b) (allowing a district court to \"direct the entry of a final judgment as to one or more but fewer than all claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment”). . After Horaist filed her appeal, she reasserted all of her claims in a third amended complaint. She refused to withdraw the previously dismissed claims, and the district court struck them again. See Fed.R.Civ.P. 12(1) (stating that the court may strike \"from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter”). Defendants" }, { "docid": "15647288", "title": "", "text": "other jurisdictions have consistently focused on the interaction between the creditor and the property or debtor at, near, or incident to the actual seizure of the property. No case-law suggests that Pennsylvania would be willing to extend what constitutes a breach of the peace to situations, like the one before us, involving damage that occurred not incident to the actual seizure. Plaintiff has not pleaded any facts indicating that she, or anyone, was present at the scene, that Defendant CAC used force or threats of force, that Defendant CAC trespassed, or that Defendant CAC used law enforcement. Therefore, Plaintiff has not sufficiently pleaded a plausible claim for a breach of the peace, under § 9609. The recourse for this type of allegation is more appropriately brought as a negligence action, which Plaintiff has already done so in Count IV of her Complaint. For the same reasons as discussed above, we will allow Plaintiff fourteen days to file an Amended Complaint if she so chooses to. cure its deficiencies. C. Motion to Strike Plaintiffs Prayer for Relief. Federal Rule of Civil Procedure 12(f) provides that “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” A demand for damages that is not recoverable as a matter of law may be stricken pursuant to Rule 12(f). Seippel v. Jenkens & Gilchrist, P.C., 341 F.Supp.2d 363, 383 (S.D.N.Y.2004) (footnote omitted); Shabaz v. Polo Ralph Lauren Corp., 586 F.Supp.2d 1205, 1208-09 (C.D.Cal.2008) (citations omitted). Defendant CAC argues that parts A, B, D, E, and G of Plaintiffs Prayer for Relief must be stricken because these damages are not recoverable against it. Plaintiff concedes in her proposed Order attached to her Response that we should strike Section A’s references to the UTPCPL and FCEUA and Section G as to Defendant CAC. Thus, to the extent that Defendant CAC’s Motion asks us to strike these various prayers for relief, it will be grant ed. Plaintiff has not addressed Defendant CAC’s remaining arguments. Thus, we will also grant Defendant CAC’s Motion without prejudice as it pertains to striking Section" }, { "docid": "547866", "title": "", "text": "ADEA claim, would be precluded by her own words and conduct is not a matter which should be resolved on a motion to dismiss. In the event that the plaintiff succeeds in sufficiently alleging a continuing violation claim under the ADEA, the court would have to treat the allegations in the Complaint as true. Even if some allegations appeared inconsistent with others, the court would not dismiss the plaintiffs state law claims — or the plaintiffs ADEA claim — on the asserted ground that the plaintiff voluntarily resigned. D. Because the court has determined that the plaintiffs Complaint should be dismissed, the defendants’ alternative motions for a more definite statement and to strike are technically moot. However, in order to avoid duplication and delay in the event that this litigation continues, see note 6, supra, the court will address these alternative motions on their merits. (1) With regard to the defendants’ motion for a more definite statement, the court finds that the complaint adequately notifies the defendants of the nature of the plaintiffs claims and therefore satisfies the liberal pleading requirements of Fed.R.Civ.P. 8. See 2A Moore’s Federal Practice ¶ 12.18[1] (1992 & Supp.1993). Accordingly, if the court were to address the defendants’ motion for a more definite statement on the basis of a complaint that seeks to cure the defects identified in Count I, that motion would be denied. (2) The defendants’ alternative motion to strike paragraph 17 of the complaint would, in such circumstances, also be denied. Fed.R.Civ.P. 12(f) provides, in pertinent part, that “the court may order stricken from any pleading ... any redundant, immaterial, impertinent, or scandalous matter.” Nevertheless, motions to strike are not favored by the Federal Rules. See 5A Charles A. Wright, Arthur H. Miller & Edward H. Cooper, Federal Practice and Procedure § 1380 (1988 & Supp.1993). Here, the court is not convinced that the allegations of paragraph 17 could have no possible bearing on the subject matter of the litigation. As a result, the defendants’ motion would fail. See Schramm v. Krischell, 84 F.R.D. 294, 299 (D.Conn.1979). Put simply, this allegation, if" }, { "docid": "14167083", "title": "", "text": "conspiracy she alleges, I cannot say as a matter of law that she will not. She has alleged facts with sufficient specificity which, if proved, would permit a trier of fact to infer intent and agreement in furtherance of illegal goals as required under the law of conspiracy. The complaint here is rich in detail. See Hauptmann, 570 F.Supp. at 385. Since I find, as a matter of law, that plaintiff could prove a set of facts in support of her claim which would entitle her to relief, see Conley, 355 U.S. at 45-46, 78 S.Ct. at 101-102, I will not dismiss her claims on this ground. Since a claim under 42 U.S.C. § 1986 is derivative in nature, see Hauptmann, 570 F.Supp. at 387, plaintiff’s § 1986 claim remains viable in light of my holding that she has stated a claim for relief under §§ 1983 and 1985(3). Similarly, I conclude that plaintiff’s pendent state law claims remain within the jurisdiction of this court. One matter remains for my consideration at this time. Defendant Mintz has moved this court to strike paragraph 55 of the complaint as “scandalous matter” under Rule 12(f) of the Federal Rules. I have decided to deny this motion. Paragraph 55 states in relevant part: On information and belief, just prior to that [administrative] hearing, defendants Farrell and Mintz attempted to suborn perjury from witnesses scheduled to attend the aforesaid DOC hearing. Their subornation was done in furtherance of defendants’ conspiracy. I start with the proposition that “[mjotions to strike alleged redundant, immaterial, impertinent or scandalous matter are not favored. Matter will not be stricken from a pleading unless it is clear that it can have no possible bearing upon the subject matter of the litigation.” 2A Moore’s Federal Practice ¶ 12.21 at p. 2429 (1983) (footnotes omitted). Defendant argues that paragraph 55 is scandalous in that it “improperly and excessively impugn[s] his moral character” without factual basis. Scandalous pleading for purposes of Rule 12(f) must “reflect cruelly” upon the defendant’s moral character, use “repulsive language” or “detract from the dignity of the court.” Id." }, { "docid": "20992758", "title": "", "text": "under Rule 23(b)(2) was inappropriate); Clark v. McDonald’s Corp., 213 F.R.D. 198, 205 n. 3 (D.N.J.2003) (“A defendant may move to strike class allegations prior to discovery in rare cases where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met.”). Rule 12(f) states in relevant part: The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (l)on its own; or (2)on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading. Fed.R.Civ.P. 12(f). Although this Court typically has stricken class allegations pleadings on defendants’ motions pursuant to Rule 12(f)(2), subsection 12(f)(1) explicitly grants the Court authority to do the same without a defendant first filing a motion to strike. Furthermore, Rule 23(c)(1)(A) states that, “at an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.” Based on the pleadings in these cases, the Court found it appropriate to consider Plaintiffs’ class allegations sua sponte and thus issued the aforementioned Order to Show Cause. Plaintiffs claim to satisfy certification requirements under either 23(b)(2) or (3). Rule 23(b) states, in pertinent part: A class action may be maintained if Rule 23(a) is satisfied and if: (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation con cerning the" }, { "docid": "9531229", "title": "", "text": "his official capacity, that aspect of Count III must fail for the same reasons that Count III fails as to Brown-miller in his official capacity. See supra Part III.B. Because Plaintiff ultimately cannot sustain an assault and battery cause of action against York in his official capacity, Plaintiffs claim for punitive damages stemming from her assault and battery claim must be dismissed as to Defendant York in his official capacity. Accordingly, all of Plaintiffs claims for punitive damages, as to the Borough and as to York and Brownmiller in their official capacities, shall be dismissed. V. Motion to Strike Finally, Defendants move this Court, pursuant to Rule 12(f), to strike from the Complaint any reference to an unrelated litigation, Zimmerman v. York, Civ.A. No. 94-4076, 1998 WL 111808 (E.D.Pa.1998), which terminated in 1998. In her Complaint, Plaintiff avers that Defendant Brownmiller, as well as the Borough, “should have known, of actions and conduct on the part of Defendant York ... which indicated that Defendant York was likely to arrest, ‘manhandle,’ and detain persons such as Plaintiff’ without proper cause. Complaint ¶ 51. As an example, at paragraph 52 of her Complaint, Plaintiff alleges that York was previously sued for civil rights violations related to his interaction with Shane Zimmerman. See id. ¶ 52. Defendants argue that the Zimmerman case has no relevance or relation to the instant case. Moreover, Defendants assert that the Zimmerman case resulted in a grant of summary judgment, and therefore can have no legal or factual significance in the present matter. Federal Rule of Civil Procedure 12(f) provides that the court “may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R.Civ.P. 12(f). Motions to strike are generally disfavored. See, e.g., DiPietro v. Jefferson Bank, No. Civ.A. 91-7963, 1993 WL 101356, at *1 (E.D.Pa. March 30, 1993). This Court has observed that the “standard for striking under Rule 12(f) is strict” and that “only allegations that are so unrelated to plaintiffs’ claims as to be unworthy of any consideration” should be stricken. Id. (quoting In re Catanella and" }, { "docid": "20411279", "title": "", "text": "moving party may succeed on summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Summary judgment is appropriate if the non-movant fails to offer “evidence on which the jury could reasonably find for the [non-movant].” Id. at 252,106 S.Ct. 2505. III. DISCUSSION A. Motion to Strike Defendant has filed a motion to strike eight of plaintiffs exhibits. On July 28, 2009, plaintiff timely filed her memorandum in support of her opposition, which included five exhibits. Defendant moved for an extension of time to reply, because the memorandum filed by plaintiff was unreadable. The Court granted defendant’s motion and ordered plaintiff to file a “readable brief in opposition.” Minute Order on Aug. 3, 2009. On August 10, 2009, plaintiff filed a readable copy of her brief as well as thirteen exhibits, eight of which defendant now moves to strike. Mot. to Strike at 3. Defendant argues that these eight exhibits were not authorized by the Court’s August 3, 2009 Order, Mot. to Strike at 5, but plaintiff states that her opposition brief “always referred to all of [her] exhibits (Exhibits 1-13),” PL’s Opp’n Mot. Strike at 4-5. She asserts that not only was her opposition “accidentally converted into an unreadable document,” but also “Exhibits 6-13 [were] not converted into a PDF for mat, and thus, [were] not attached to [her] original pleading.” Id. at 4. “Though the power to strike exhibits from motions for summary judgment derives from Rule 56, the framework of Rule 12(f), which allows pleadings to be stricken, is instructive.” Wasserman v. Rodacker, No. 06-1005, 2007 WL 274748, at *2 (D.D.C. Jan. 29, 2007). Rule 12(f) permits the court to strike “from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter.” Fed.R.Civ.P. 12(f). Defendant has not claimed that plaintiffs exhibits manifest any of these characteristics. Furthermore, motions to strike under Rule 12(f) are “generally strongly disfavored.” Wasserman, 2007 WL 274748, at *2; see also Nugent v. Unum" }, { "docid": "18304466", "title": "", "text": "Response, we deem no action necessary on this point. However, for purposes of clarity, to the extent, if any, that Plaintiff claims relief under the Act, such claims shall be dismissed. MOTION TO STRIKE Lastly, Defendants made a motion under Fed.R.Civ.P. 12(f) to strike immaterial, redundant, impertinent and/or scandalous material in the Complaint. Motions under Rule 12(f) are viewed with disfavor and are rarely granted. Augustus v. Board of Public Instruction of Escambia County, Florida, 306 F.2d 862, 868 (5th Cir.1962). Further, the Rule 12(f) motion is not an authorized nor a proper way to dismiss portions of a complaint. Thompson v. United Artists Theatre Circuit, Inc., 43 F.R.D. 197, 201 (S.D.N.Y.1967); South v. United States, 40 F.R.D. 374, 376 (W.D.Miss.1966). This Court finds that Defendants’ Rule 12(f) motion to strike is inappropriate and should be denied. CONCLUSION Accordingly, this Court will enter an order pursuant to Fed.R.Civ.P. 12(b)(6) dismissing Count II (abusive discharge) as it pertains to public policies encouraging free choice surrounding pregnancy and encouraging family unity and the maintenance of family discipline, Count IV (tortious breach of the covenant of good faith and fair dealing), Count V (tortious interference with contractual relations), Count VI (negligence), Count VII (intentional or reckless infliction of emotional distress), and Count VIII (equitable estoppel) for failure to state a claim upon which relief can be granted. . Under 42 U.S.C. § 2000e(k), \"on the basis of sex” includes \"because of or on the basis of pregnancy.” . Note, however, that if a somewhat different factual pattern is proved instead, the result may be different. Plaintiff has alleged that Defendants' unstated policy was to fire all senior female employees to prevent payment of pension benefits. Male employees, she asserts, were not subject to this policy. If that discriminatory practice is proved, it will state a Title VII claim and Plaintiff will, for the reasons given in Paragraph A above, be precluded from asserting her wrongful discharge claim." }, { "docid": "9241583", "title": "", "text": "because there is no suggestion that she is in \"immediate danger of sustaining some direct injury.\" (Id. ) In response, Plaintiff argues that she adequately asserted claims under both the FLSA and the IMWL, and that her request for declaratory relief is proper. (R. 52, Pl.'s Resp. to Mot. to Dismiss at 2.) Defendant separately moves to strike Plaintiff's affirmative defenses. (R. 48, Def.'s Mot. to Strike.) Defendant argues that Plaintiff's affirmative defenses are either legally invalid or not adequately pleaded. (Id. at 1-2.) In response, Plaintiff contends that her affirmative defenses are legally viable and properly pleaded. (R. 57, Pl.'s Resp. to Mot. to Strike at 6.) Both motions are now fully briefed and ripe for adjudication. LEGAL STANDARD To survive a motion to dismiss under Rule 12(b)(6), a complaint must \"state a claim to relief that is plausible on its face.\" Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). \"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.\" Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A complaint does not need detailed factual allegations, but \"a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.\" Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation, internal quotation marks, and alteration omitted). Under Federal Rule of Civil Procedure 12(f), \"[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.\" FED. R. CIV. P. 12(f). Motions to strike are \"generally disfavored\" because they may unnecessarily delay the proceedings. Siegel v. HSBC Holdings, plc. , 283 F.Supp.3d 722, 730 (N.D. Ill. 2017) (citation omitted). However, a motion to strike is proper \"when it serves to remove unnecessary clutter\" and thereby expedites the case. Id. (citation omitted). Affirmative defenses subject to a motion to strike" }, { "docid": "5715725", "title": "", "text": "resulted from a completely different situation than the situation contained in the plaintiffs’ charge. See id. In fact, the Court noted that virtually all matters related to the “peeping Tom” scheme, such as who viewed the video tape, where the video camera came from, and who operated the video camera, could reasonably be expected to grow out of the discrimination charge, even those against individuals that weren’t named in the plaintiffs’ EEOC charge. See id. The Court specifically limited the “scope” of the plaintiffs’ complaint to only those allegations that resulted from the alleged “peeping Tom” scheme, which was included in the plaintiffs charge. See id. After careful examination of Plaintiffs charge of discrimination, the Court finds that in Plaintiffs EEOC charge, Plaintiff broadly alleged that “unsolicited sexual comments and actions” created the alleged sexually hostile work environment. Plaintiffs charge of discrimination, based on “unsolicited sexual comments and actions,” could include instances of improper touching. Plaintiff alleged that “actions” were committed against her. The word “actions” is a very broad word, which could include any number of actions committed against Plaintiff. Accordingly, this Court finds that claims alleged for improper touching “amplify, clarify, [and] more clearly focus” Plaintiffs earlier complaints for the “unsolicited sexual actions and comments” of Defendants. A more limited claim for improper touching could reasonably be expected to grow out of the broad allegations of “unsolicited sexual comments and actions,” contained in Plaintiffs charge of discrimination. As Plaintiffs claims for improper touching are reasonably related to the charge of discrimination, the Court finds that dismissal of the portions of Plaintiffs Complaint that relate to improper touching is not warranted. c. Motion to Strike Federal Rule of Civil Procedure 12(f) provides that upon motion by a party or upon the court’s initiative at any time, the court may order stricken from any pleading any “redundant, immaterial, impertinent, or scandalous matter.” See Seibel v. Society Lease, Inc., 969 F.Supp. 713, 715 (M.D.Fla.1997). A motion to strike will “usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.”" }, { "docid": "20992757", "title": "", "text": "submitted responsive papers and the Court held oral argument on August 12, 2015. Counsel for ACME also submitted a motion to strike the declarations and exhibits attached to Plaintiffs’ response to the Order to Show Cause. The Court will first address the Amended Complaint’s class action allegations and then the pending motions to dismiss named Plaintiffs’ underlying claims. II. Plaintiffs’ Class Allegations The Court has the authority to strike class allegations at the pleading stage under Fed.R.Civ.P. 12(f) if the complaint demonstrates that a class action cannot be maintained. Smith v. Merial Ltd., No. 10-439, 2012 WL 2020361, at *6 (D.N.J. June 5, 2012). This Court has addressed and stricken class allegations at the pleading stage on defendants’ motions pursuant.to Fed.R.Civ.P. 12(f) when it becomes clear from the complaint that plaintiffs cannot meet the certification requirements of Rule 23. Id. at *4; see also Advanced Acupuncture Clinic, Inc. v. Allstate Ins. Co., No. 07-4925, 2008 WL 4056244 at *10 (D.N.J. Aug. 26, 2008) (granting motion to strike class allegations when it became clear injunctive relief under Rule 23(b)(2) was inappropriate); Clark v. McDonald’s Corp., 213 F.R.D. 198, 205 n. 3 (D.N.J.2003) (“A defendant may move to strike class allegations prior to discovery in rare cases where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met.”). Rule 12(f) states in relevant part: The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (l)on its own; or (2)on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading. Fed.R.Civ.P. 12(f). Although this Court typically has stricken class allegations pleadings on defendants’ motions pursuant to Rule 12(f)(2), subsection 12(f)(1) explicitly grants the Court authority to do the same without a defendant first filing a motion to strike. Furthermore, Rule 23(c)(1)(A) states that, “at an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the" } ]

[ { "docid": "22829692", "title": "", "text": "the war against organized crime and that the alteration would entail prosecutions involving acts of racketeering that are also crimes under state law. There is no argument that Congress acted beyond its power in so doing. That being the case, the courts are without authority to restrict the application of the statute. United States v. Turkette, 452 U.S. at 586, 587, 101 S.Ct. at 2531 (1981). In view of this legislative history, it is not surprising that most courts in this and other circuits have had little trouble in entertaining RICO civil actions for damages flowing from the operation by otherwise “legitimate” business people of enterprises through a pattern of mail fraud and securities law violations. See, e.g., Bennett v. Berg, 685 F.2d 1053 (8th Cir.1982), pet. for reh. en banc granted, Sept. 17, 1982 (upholding finding that defendant mortgage lender, insurance company, developer, accountants, attorneys and corporate directors caused compensable RICO damages through operation of retirement community through, inter alia, mail fraud); USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94 (6th Cir.1982) (upholding injunction in civil RICO action founded on corporate promoter’s breach of fiduciary duty); Parnes v. Heinold Commodities, Inc., 487 F.Supp. 645 (N.D.Ill.1980) (RICO action stemming from mail fraud in commodities trading); Heinold Commodities, Inc. v. McCarty, 513 F.Supp. 311 (N.D.Ill.1979) (commodities fraud); Hanna v. Norcen Energy Resources, Ltd., [Current] Fed.See.L.Rep. (CCH) ¶ 98,742 (N.D.Ohio 1982) (RICO action against corporation and its investment banking firm upheld); Engl v. Berg, 511 F.Supp. 1146 (E.D.Pa.1981) (upholding action against mortgage company in securities fraud RICO claim); Spencer Companies v. Agency Rent-A-Car, Inc., [1981] Fed.Sec.L. Rep. (CCH) ¶ 98,361 (D.Mass.1981) (alleged fraud in misleading public statement in corporate takeover actionable under RICO); Computer Terminal Systems, Inc. v. Gross, 1982-1 Trade Cas. (CCH) ¶ 64, 531 (E.D.N.Y. 1981) (action against company officers involving kickback scheme). But see Wagner v. Bear, Stearns and Co., Inc., [Current] Fed.Sec.L.Rep. (CCH) ¶ 94,032 at 94,913 (N.D.Ill.1982); Moss v. Morgan Stanley, Inc., [Current] Fed.Sec.L.Rep. (CCH) ¶ 99,045 at 94,982 (S.D.N.Y.1983); Adair v. Hunt International Resources Corp., 526 F.Supp. 736 (N.D.I11.1981); Waterman Steamship Corp. v. Avondale" } ]

[ { "docid": "22375727", "title": "", "text": "must be caused by a RICO violation and not simply by the commission of a predicate offense .... RICO’s civil remedy provision permits a recovery to “any person injured in his business or property by reason of a violation of Section 1962,’’ ... that is, where the distinctive RICO violation contributed to plaintiff’s injury, i.e., where the plaintiff suffered directly a racketeering enterprise injury at the hands of those sought to be reached by the Organized Crime Control Act of 1970. 553 F.Supp. at 1361. In so stating, the district court joined a growing number of courts that have limited standing under 18 U.S.C. § 1964(c) to those “plaintiffs alleging something more, or different, than direct injury resulting from the predicate acts that constitute the racketeering activity. Instead, a plaintiff must allege a commercial or ‘racketeering enterprise’ injury.” Johnsen v. Rogers, 551 F.Supp. 281, 284-85 (C.D.Cal.1982) (footnote omitted); see Cenco, Inc. v. Seidman & Seidman, 686 F.2d 449, 457 (7th Cir.), cert. denied, - U.S. -, 103 S.Ct. 177, 74 L.Ed.2d 145 (1982); North Barrington Development, Inc. v. Fanslow, 547 F.Supp. 207, 211 (N.D.Ill. 1980) (“plaintiff must allege how it was injured competitively by the RICO violation in order to state a cause of action under § 1964(c).”); Harper v. New Japan Securities Int’l, 545 F.Supp. 1002, 1007 (C.D.Cal.1982); Van Schaick v. Church of Scientology, 535 F.Supp. 1125, 1137 (D.Mass.1982); Landmark Savings & Loan v. Loeb Rhoades, Homblower & Co., 527 F.Supp. 206, 208 (E.D.Mich.1981); see also Comment, Reading the “Enterprise” Element Back into RICO: Sections 1962 and 1964(c), 76 Nw.U.L. Rev. 100, 125-33 (1981). But see Bennett v. Berg, 685 F.2d 1053, 1059 (8th Cir.), aff’d in part and rev’d in part on other grounds, 710 F.2d 1361 (8th Cir. 1983) (en banc); D’lorio v. Adonizio, 554 F.Supp. 222, 231 (M.D.Pa.1982); Hellenic Lines Ltd. v. O’Hearn, 523 F.Supp. 244, 248 (S.D.N.Y.1981); see also Blakey & Gettings, Racketeer InBuenced and Corrupt Organizations (RICO); Basic Concepts — Criminal and Civil Remedies, 53 Temple L.Q. 1009, 1040-43 (1980); Strafer, Massumi & Skolnick, Civil RICO in the Public Interest: “Everybody’s Darling,” 19 Am.Crim." }, { "docid": "22112050", "title": "", "text": "of the FWPCA. That Court notably attached no special significance to this term, presumably because the word “violation” is commonly used to designate civil wrongs. Finally, the effect of this ruling will leave victims of those defendants whose activities were at the heart of Congress’ concern without the remedy Congress envisioned. Regardless of whether a defendant is a member of an organized crime family and no matter how lawless his pattern of racketeering activity may be, if he escapes conviction — through acquittal, a beneficial plea, or a decision not to prosecute — then the remedy granted the victim of these activities is lost. II. Racketeering Injury Concern that the RICO civil remedy will permit recovery of treble damages and attorneys' fees in every “garden variety” civil fraud case leads the majority to impose an additional standing requirement. Limiting RICO’s broad reach by requiring, for example, an “organized crime” connection was rejected by Congress and by this court, see Moss v. Morgan Stanley, supra, 719 F.2d at 21 n. 17. Similarly, a “competitive injury” requirement has been rejected in the Seventh and Eighth Circuits. Schacht v. Brown, 711 F.2d 1343, 1359 (7th Cir.), cert, denied, — U.S.-,-, 104 S.Ct. 508, 509, 78 L.Ed.2d 698 (1983). Bennett v. Berg, 685 F.2d 1053, 1058 (8th Cir. 1982), affd in part on rehearing en banc, 710 F.2d 1361 (8th Cir.), cert, denied, — U.S. -, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). The Supreme Court has specifically rejected an approach that would require an allegation that the enterprise be “illegitimate.” United States v. Turkette, 452 U.S. 576, 586-87, 101 S.Ct. 2524, 2530, 69 L.Ed.2d 246 (1981). What remains is the theory adopted by some courts and that, together with the prior conviction requirement, the majority embraces bere. That is, there must be an allegation of an injury from the “racketeering enterprise,” a so-called “racketeering injury.” Such has also been described as an injury “by reason of conduct the RICO act was designed to prevent,” and as “something more than” the injury caused by the predicate acts alone. How one can distinguish between the" }, { "docid": "699324", "title": "", "text": "or entity capable of holding a legal or beneficial interest in property”; and “enterprise” is defined in § 1961(4) as “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” The vast majority of courts hold that for purposes of § 1962, the “person” and the “enterprise” must be two separate entities. Bennett v. United States Trust Co., 770 F.2d 308, 314-15 (2d Cir.1985); Haroco, Inc. v. Am. Nat’l Bank & Trust Co., 747 F.2d 384, 400 (7th Cir.1984), aff'd on other grounds 473 U.S.-, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir.1984); Bennett v. Berg, 685 F.2d 1053, 1061 (8th Cir.1982), reh. en banc, 710 F.2d 1361, cert. denied 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983); Medallion TV Enterprises v. SelecTV of California, 627 F.Supp. 1290 (C.D.Cal.1986); and Saine v. A.I.A., 582 F.Supp. 1299 (D.Colo.1984). Under § 1962(c), the “person” must engage in conduct of the enterprise through a pattern of racketeering activity. The terms “conduct” and “through” are not defined by statute. Common sense dictates that an integral relationship between the pattern of racketeering activity and the conduct of the enterprises’s affairs is essential to give meaning to these terms. Therefore, the “person” committing the racketeering activity must have at least some involvement in the management or everyday affairs of the “enterprise” in order to satisfy the “conduct through” requirement. In Bennett v. Berg, 710 F.2d 1361 (8th Cir.), cert. denied 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983), the Eighth Circuit Court of Appeals, in finding that a RICO complaint was deficient for failing to adequately allege the requisite degree of participation in the affairs of an enterprise by the defendant, stated: Mere participation in the predicate offenses listed in RICO, even in conjunction with a RICO enterprise, may be insufficient to support a RICO cause of action. A defendant’s participation must be in the conduct of the affairs of a RICO enterprise, which ordinarily will require some participation" }, { "docid": "15580072", "title": "", "text": "evidence of that individual’s influence over the proceedings. A contrary finding would simply encourage potential wrongdoers to place the most efficient bribe possible: one that will reach the desired result without the expense of bribing a majority (or supermajority) of councilmembers. We next move to what injuries Bieter may have actually suffered. B As the uses of civil RICO have expanded since its enactment in 1970, courts have sought to restrict its use through imposition of various standing restrictions that would require a plaintiff to plead, for example, racketeering injury or competitive injury. See generally Sedima, S.P.R.L. v. Imrex Co., 741 F.2d 482, 485 (2d Cir.1984) (discussing competitive and racketeering injury requirements), rev’d, 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985); Bennett v. Berg, 685 F.2d 1053, 1058-59 (8th Cir.1982) (discussing competitive or commercial injury requirement), on rehearing, 710 F.2d 1361 (8th Cir.) (en banc), cert. denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). Despite this movement in the lower courts, the Supreme Court rejected any additional standing requirements in civil RICO cases, finding that the plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation. ... But the statute requires no more than this_ [T]he compensable injury necessarily is the harm caused by predicate acts sufficiently related to constitute a pattern, for the essence of the violation is the commission of those acts in connection with the conduct of an enterprise. Sedima, 473 U.S. at 496-97, 105 S.Ct. at 3285. In the instant case, the district court imposed a standing requirement of its own, borrowing from the realm of regulatory takings, when it held that Bieter had not been injured by the denial of rezoning because it had not renewed its application. See Bieter, 784 F.Supp. at 1414. In so doing, the court relied on an earlier opinion issued by the same court, Metal Coating Minneapolis v. Minneapolis Community Dev. Agency, No. Civ. 4-89-415, 1989 WL 296682 (D.Minn. Nov. 22, 1989). Both the Bieter court and" }, { "docid": "22375728", "title": "", "text": "Development, Inc. v. Fanslow, 547 F.Supp. 207, 211 (N.D.Ill. 1980) (“plaintiff must allege how it was injured competitively by the RICO violation in order to state a cause of action under § 1964(c).”); Harper v. New Japan Securities Int’l, 545 F.Supp. 1002, 1007 (C.D.Cal.1982); Van Schaick v. Church of Scientology, 535 F.Supp. 1125, 1137 (D.Mass.1982); Landmark Savings & Loan v. Loeb Rhoades, Homblower & Co., 527 F.Supp. 206, 208 (E.D.Mich.1981); see also Comment, Reading the “Enterprise” Element Back into RICO: Sections 1962 and 1964(c), 76 Nw.U.L. Rev. 100, 125-33 (1981). But see Bennett v. Berg, 685 F.2d 1053, 1059 (8th Cir.), aff’d in part and rev’d in part on other grounds, 710 F.2d 1361 (8th Cir. 1983) (en banc); D’lorio v. Adonizio, 554 F.Supp. 222, 231 (M.D.Pa.1982); Hellenic Lines Ltd. v. O’Hearn, 523 F.Supp. 244, 248 (S.D.N.Y.1981); see also Blakey & Gettings, Racketeer InBuenced and Corrupt Organizations (RICO); Basic Concepts — Criminal and Civil Remedies, 53 Temple L.Q. 1009, 1040-43 (1980); Strafer, Massumi & Skolnick, Civil RICO in the Public Interest: “Everybody’s Darling,” 19 Am.Crim. L.Rev. 655, 689-707 (1982). The district court subscribed to this interpretation of section 1964(c), but never explained its understanding of a racketeering enterprise injury. We need not decide whether such an interpretation is proper because we find that plaintiff has not satisfied the threshold burden of showing that he suffered any injury “by reason of” defendants’ unlawful conduct. . Similarly, the Act’s legislative history supports a rejection of this “organized crime” element. During the House debates on RICO, Congressman Biaggi proposed an amendment that sought to limit the application of RICO to Mafia and La Cosa Nostra organizations. 116 Cong.Rec. 35,343 (1970). The amendment was vigorously attacked on constitutional grounds. Congressman Celler objected that such terms were “imprecise, uncertain, and unclear” and that mere membership in an organization should not be punished. Id. at 35,343-44 (1970). Congressman Poff (the bill’s sponsor in the House) objected that such an amendment might violate the Supreme Court’s rulings that struck down statutes which created status offenses, such as Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469," }, { "docid": "18437185", "title": "", "text": "F.2d 1458, 1465 (9th Cir.1983); Mullis v. Merrill Lynch, Pierce, Fenner & Smith, 492 F.Supp. 1345, 1361 (D.Nev.1980). F. RICO Claim 1. Organized Crime Connection Defendants cite a number of decisions including Hokama v. E.F. Hutton & Co., Inc., 566 F.Supp. 636 (C.D.Cal.1983) and Barr v. WUI/TAS, 66 F.R.D. 109 (S.D.N.Y.1975), for the proposition that RICO plaintiffs must allege defendants’ “nexus” or “link” to organized crime. To begin with, the reasoning in Barr has been disapproved by the Second Circuit in Moss v. Morgan Stanley, 719 F.2d 5 (2d Cir.1983), which disapproved the district court opinion on which Hokama relied. Moreover,, the large majority of courts, including every circuit to consider the question, have agreed with Moss’s rejection of the requirement that plaintiff allege ties to organized crime. See, e.g., Schacht v. Brown, 711 F.2d 1343, 1353-56 (7th Cir.), cert. denied, — U.S. -, 104 S.Ct. 508, 509, 78 L.Ed.2d 698 (1983); Bennett v. Berg, 685 F.2d 1053, 1063-64 (8th Cir.1982); and cases cited in Schacht, supra, at 1353-54. Finally, the Ninth Circuit has rejected the requirement that defendant be proved to have connections with organized crime in criminal prosecutions. See United States v. Campanale, 518 F.2d 352 (9th Cir.1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976). The reasoning behind these decisions is clear. Congress purposely declined to require that a RICO defendant be proved a member of organized crime for two reasons. First, it worried that limitation of the statute to organized crime members would create an unconstitutional “status” offense based on the affiliation rather than the conduct of defendants. Second, Congress sought to avoid imposing a difficult if not impossible burden of proof against defendants adept at concealing their organized crime connections. Accordingly, this Court refuses to read an “organized crime” requirement into the RICO statute. 2. Racketeering Enterprise Injury Second, defendants argue that plaintiffs have failed to allege injury by reason of the § 1962 violation (as opposed to the predicate offenses themselves), characterized by some courts as “racketeering enterprise injury.” These courts seek to avoid RICO's potential applicability to “garden-variety” and" }, { "docid": "18657293", "title": "", "text": "see also Hanna Mining Co. v. Norcen Energy Resources Ltd., [1982 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 98,742 at 93,737 (N.D.Ohio June 11, 1982). The legislative history shows that Congress rejected early efforts to draft RICO-like statutes within the antitrust context, apparently on the grounds that anti-trust concepts like “standing” and “proximate cause” would create “inappropriate and unnecessary obstacles in the way of persons injured by organized crime who might seek treble damage recover.” Report of Antitrust Section of the ABA, reprinted in 115 Cong.Rec. 6994-95 (1969) .... Mauriber v. Shearson/American Express, Inc., 567 F.Supp. 1231, 1240 (S.D.N.Y. 1983). Many courts have agreed with this view. See, e.g., Bennett v. Berg, 685 F.2d 1053, 1059 (8th Cir.1982), aff'd in relevant part en banc, 710 F.2d 1361 (8th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983); Schacht v. Brown, 711 F.2d 1343, 1357 (7th Cir.1983), cert. denied, — U.S.—, 104 S.Ct. 509, 78 L.Ed.2d 698 (1983); Hellenic Lines, Ltd. v. O’Hearn, 523 F.Supp. 244, 248 (S.D.N.Y.1981); Meineke Discount Muffler Shops, Inc. v. Noto, 548 F.Supp. 352, 354 (E.D.N.Y.1982); Kimmel v. Peterson, 565 F.Supp. 476, 493 (E.D.Pa.1983). The legislative history has thus been read to support both sides of this argument. This is in part attributable to the fact that the addition of a private right of action to the preliminary draft of the RICO statute did not generate discussion in either the House or the Senate. See Note, Civil RICO: The Temptation and Impropriety of Judicial Restriction, 95 Harv.L. Rev. 1101, 1112 n. 62 (1982). Congress’ decision to use the word “racketeering” in the statute provides some illumination as to the requirement of alleging a racketeering enterprise injury. If Congress had meant to design a statute providing criminal and civil penalties for multiple violations of the laws, it could have done so by using terms such as “recidivist” or “repeat offender.” Instead, Congress chose to use the word “racketeering.” The word “racketeering” is sui generis and must be given some meaning. Whereas most racketeers are multiple offenders, the converse is not true; thus, racketeering means something more" }, { "docid": "22322983", "title": "", "text": "the district court here did not explain what the requirement is. Whether a claim under section 1964(c) requires a racketeering injury has recently been one of the most hotly disputed RICO issues in the federal courts. The district courts in this circuit have disagreed on the issue, and district courts in other circuits are also divided. Although we have not tried to count eases, there does not appear to be a clear weight of authority at the district court level either for or against the racketeering injury requirement. Among the courts of appeals, the situation is more complicated. In Schacht v. Brown, 711 F.2d 1343 (7th Cir.), cert. denied, — U.S. -, -, 104 S.Ct. 508, 509, 78 L.Ed.2d 698 (1983), the leading Seventh Circuit case on civil RICO, we rejected several arguments which are closely related to the racketeering injury question. After oral argument in this case, the Second Circuit issued three decisions which, together, amount to an en banc ruling by the Second Circuit in súpport of some sort of racketeering injury requirement. Sedima, S.P.R.L. v. Imrex Co., 741 F.2d 482 (2d Cir.1984), cert. granted, 83 U.S. 917, 105 S.Ct. 901, — L.Ed.2d — (1985); Bankers Trust Co. v. Rhoades, 741 F.2d 511 (2d Cir.1984); Furman v. Cirrito, 741 F.2d 524 (2d Cir.1984). By contrast, several recent decisions by this and other courts assume that injuries resulting from the predicate acts of racketeering satisfy RICO’s requirements. Sutliff, Inc. v. Donovan Companies, supra, 727 F.2d at 653-54; Alcorn County v. U.S. Interstate Supplies, Inc., supra, 731 F.2d at 1169; Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1288 (7th Cir.1983); Bennett v. Berg, 685 F.2d 1053, 1058-59 (8th Cir.1982), aff'd en banc, 710 F.2d 1361 (8th Cir.), cert. denied, — U.S.-, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). Courts on both sides of the racketeering injury dispute have claimed that they are merely following the “plain” meaning of section 1964(c). Compare Bankers Trust Co. v. Rhoades, supra, 741 F.2d at 517 (plain meaning requires a distinct RICO injury), with Furman v. Cirrito, supra, 741 F.2d at" }, { "docid": "127717", "title": "", "text": "might well fail to state a claim.”). In dictum in a moot appeal in Trane Co. v. O’Connor Securities, 718 F.2d 26, 28 (2d Cir.1983) the Second Circuit stated: “We have the same [serious] doubts [as courts such as the Fourth Circuit in Dan River ] as to the propriety of private party injunctive relief____” More recently, in Sedima, S.P.R.L. v. Imrex Co., 741 F.2d 482, 489 n. 20 (2d Cir.1984), rev’d, — U.S. —, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), the Second Circuit observed that “[i]t thus seems altogether likely that § 1964(c) as it now stands was not intended to provide private parties injunctive relief.” However, the precedential value of this conclusion, itself somewhat equivocal, is thrown into considerable doubt by the Supreme Court’s total rejection of the conclusions drawn by the Second Circuit from its historical analysis of the RICO statute. See 105 S.Ct. 3275. In contrast, the Eighth Circuit, expressly without resolving the issue, has hinted that injunctive relief may be available either under civil RICO or under a court’s general equitable powers. See Bennett v. Berg, 685 F.2d 1053, 1064 (8th Cir.1982) (citing a law review article which supports the availability of injunctive relief), aff'd on rehearing, 710 F.2d 1361 (8th Cir.) (en banc), cert. denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). See also USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94, 97-98 (6th Cir.1982) (affirming grant of injunctive relief to private plaintiff on pendent state claims where RICO provided federal jurisdiction base). A similar disunity of views exists among those district courts that have confronted the issue. The only three published decisions explicitly to hold that injunctive relief is not available to a civil RICO plaintiff are all from the Northern District of Illinois. See Miller v. Affiliated Financial Corp., 600 F.Supp. 987, 994 (N.D.Ill.1984); DeMent v. Abbott Capital Corp., 589 F.Supp. 1378, 1382-83 (N.D.Ill.1984); and Kaushal v. State Bank of India, 556 F.Supp. 576, 581-84 (N.D.Ill.1983). See also Ashland Oil, Inc. v. Gleave, 540 F.Supp. 81, 85-86 (W.D.N.Y.1982) (statutory attachment not available to private civil RICO" }, { "docid": "18743369", "title": "", "text": "Maturation Problems and Proposals for Reform, 35 Rutgers L.Rev. 285 (1983); Note, Civil RICO: The Temptation and Impropriety of Judicial Restriction, 95 Harv.L.Rev. 1101 (1982). The answer to the question as to whether the legislative history evinces a legislative intent contrary to the plain language of the statute then must be a resounding “no.” Ill ANALYSIS OF MAJORITY’S HOLDING The fallaciousness of the district court’s opinion and the majority view is demonstrated by analyzing them in the light of the statute’s plain language and legislative history. The majority gives its imprimatur to the district court’s view that in an ordinary case of bankruptcy fraud civil RICO was not intended to apply. The complaint was dismissed below because Bankers had not been damaged “by reason of” a RICO violation. A number of other courts have sought to thwart RICO’s far-ranging impact by requiring “something more” than injury from the predicate acts, i.e. something beyond what the statute and its history require, such as a nexus with organized crime, Moss v. Morgan Stanley, Inc., 553 F.Supp. 1347, 1361 (S.D.N.Y.), aff'd on other grounds, 719 F.2d 5 (2d Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984), prior criminal conviction or indictment, Sedima S.P.R.L. v. Imrex Co., 741 F.2d 482 (2d Cir.1984), or a competitive injury, North Barrington Dev., Inc. v. Fanslow, 547 F.Supp. 207, 211 (N.D.Ill.1980). Interpreting civil RICO as requiring “something more” than injury from the predicate offenses, the majority has thus adopted one variant of the “racketeering enterprise injury” standing requirement. For the most part those cases that have upheld civil RICO claims have noted without extensive discussion that any such requirement was satisfied, see, e.g., Schacht v. Brown, 711 F.2d 1343, 1358-59 (7th Cir.), cert. denied, — U.S.-, 104 S.Ct. 508, 509, 78 L.Ed.2d 698 (1983). Similarly, decisions like that of the trial court here which have dismissed RICO claims on this ground have not defined the enterprise injury requirement. See, e.g., Johnsen v. Rogers, 551 F.Supp. 281, 284-85 (C.D.Cal.1982). Here, the panel furnishes examples of a “racketeering enterprise injury,” something earlier cases have failed" }, { "docid": "18743372", "title": "", "text": "the “by reason of” language, cf. Sedima S.P.R.L. v. Imrex Co., supra, 741 F.2d at 494 that arguably seems to require a link to organized crime, see id., at 509 (Car-damone, J., dissenting), the majority’s approach here creates the risk that even Mafia defendants will not be subject to the civil liability that Congress so clearly envisioned. For this reason, and because the requirement is generally undefined, a host of recent decisions have rejected the racketeering enterprise injury requirement. See, e.g., Kirschner v. Cable/Tel Corp., 576 F.Supp. 234, 244 (E.D.Pa.1983) (racketeering enterprise injury requirement has been “uniformly rejected” as contrary to statutory language and legislative intent); Ralston v. Capper, 569 F.Supp. 1575, 1580 (E.D.Mich.1983) (racketeering enterprise injury requirement “undefined”); Mauriber v. Shearson/American Express, Inc., 567 F.Supp. 1231, 1240 (S.D.N.Y.1983) (racketeering injury has no basis in language of statute or legislative history and would exclude from section 1964 even the conduct of a firm infiltrated by organized crime); Seville Industrial Machinery Corp. v. Southmost Machinery Corp., 567 F.Supp. 1146, 1157 (D.N.J.1983) (“this judicially imposed requirement of a ‘racketeering enterprise injury’ seems artificial and unwarranted by the language of the RICO statute.”); Kimmel v. Peterson, 565 F.Supp. 476, 493-95 (E.D.Pa.1983) (racketeering enterprise injury is indistinguishable from competitive or commercial injury requirement and would allow certain targeted behavior to escape section 1964’s reach). See also Alcorn County, Miss. v. U.S. Interstate Supplies, 731 F.2d 1160, 1169 (5th Cir.1984); Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648, 653-54 (7th Cir.1984); Bennett v. Berg, 685 F.2d 1053, 1059 n. 5 (8th Cir.1982), aff'd in part on rehearing en banc, 710 F.2d 1361, cert. denied, — U.S. -, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983) (implicitly rejecting racketeering enterprise injury requirement). IV REASONS FOR DISAGREEMENT WITH MAJORITY I fail to see how the complaint lacks any element required by the statute. In my view the complaint sufficiently alleges that Rhodes, Braten and Soifer conducted their crooked corporate “shell game” through a pattern of racketeering activity by way of bankruptcy fraud and state law felonies. It is claimed in the complaint that the RICO enterprise operated" }, { "docid": "10959404", "title": "", "text": "Violations of § 1962(c). The defendants argue that the plaintiff’s claim that Agency, Frankino and Smith violated § 1962(c) by operating Econo-Car II through a pattern of racketeering activity must also be dismissed. The defendants contend that the amended complaint does not state a cause of action because it does not allege that the plaintiff was a victim of a “racketeering enterprise injury.” According to the defendants, a RICO complaint fails to state a cause of action unless it alleges injury above and beyond the injury suffered by virtue of the defendants’ commission of predicate acts of racketeering. The “something more” that the plaintiff must plead is “racketeering enterprise injury.” In arguing that a RICO plaintiff must prove that it has suffered this special kind of injury, the defendant relies, inter alia, on Landmark Savings & Loan v. Rhoades, 527 F.Supp. 206, 208-09 (E.D.Mich.1981), which held that: [Sjomething more or different than injury from predicate acts is required for a plaintiff to have standing to recover treble damages under the RICO statute... What is required for standing to bring a civil RICO damage action is an allegation that the plaintiff has suffered a racketeering enterprise injury.... A racketeering enterprise injury might occur, for example, if a civil RICO defendant’s ability to harm the plaintiff is enhanced by the infusion of money from a pattern of racketeering activity into the enterprise. A number of courts have adopted the requirement that a RICO plaintiff plead a racketeering enterprise injury. See, e.g., Sedima S.P.R.L. v. Imrex Co., Inc., 574 F.Supp. 963 (E.D.N.Y.1983); In re Action Industries Tender Offer, 572 F.Supp. 846 (E.D.Va.1983); Friedlander v. Nims, 571 F.Supp. 1188 (N.D.Ga.1983); Harper v. New Japan Securities International, Inc., 545 F.Supp. 1002 (C.D.Cal.1982). A roughly equal number of courts have rejected the requirement that there be some showing of special racketeering enterprise injury before the plaintiff can recover under § 1962(c). See, e.g., Sutliff Inc. v. Donovan Companies, Inc., 727 F.2d 648 (7th Cir.1984); Bennett v. Berg, 710 F.2d 1361 (8th Cir.) (en banc), cert. denied, — U.S. -, 104 S.Ct. 527, (1983), affirming, 685 F.2d" }, { "docid": "22112015", "title": "", "text": "564 F.Supp. 352, 358 (E.D.Mich.1983); King v. Lasher, 572 F.Supp. 1377, 1382 (S.D.N.Y.1983); In re Action Indus. Tender Offer, 572 F.Supp. 846, 852 (E.D.Va. 1983); Guerrero v. Kafzen, 571 F.Supp. at 721 (injury \"by reason of a RICO violation”); Van Schaick, 535 F.Supp. at 1137 & n. 11 (commercial or business injury required); Harper v. New Japan Secs. Int'l, Inc., 545 F.Supp. 1002, 1007-08 (C.D.Cal.1982); Johnsen v. Rogers, 551 F.Supp. 281, 285 (C.D.Cal.1982); Gitterman v. Vitoulis, 564 F.Supp. 46, 49 (S.D.N.Y.1982); Landmark Savs. & Loan v. Loeb Rhoades, Hornblower & Co., 527 F.Supp. 206, 208-09 (E.D.Mich.1981). . The following are among the cases that have rejected a \"competitive injury” requirement: Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d at 1288; Schacht v. Brown, 711 F.2d at 1358; Bennett v. Berg, 685 F.2d 1053, 1059 (1982), aff'd en banc, 710 F.2d 1361 (8th Cir.), cert, denied sub nom. Prudential Ins. Co. of America v. Bennett, — U.S.-, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983); Kimmel v. Peterson, 565 F.Supp. 476, 493-95 (E.D.Pa.1983) (also finding racketeering injury indistinguishable from competitive or commercial injury); Mauriber v. Shearson/American Express, Inc., 567 F.Supp. at 1240; Ralston v. Capper, 569 F.Supp. 1575, 1580 (E.D.Mich.1983); Gitterman v. Vitoulis, 564 F.Supp. at 48; USACO Coal Co. v. Carbomin Energy, Inc., 539 F.Supp. 807, 814 (W.D.Ky.), aff'd on other grounds, 689 F.2d 94 (6th Cir. 1982); Crocker Nat'l Bank, 555 F.Supp. at 49. The following cases have rejected a \"racketeering injury\" requirement: Mauriber v. Shear-son/American Express, Inc., 567 F.Supp. at 1240; Windsor Assocs., Inc. v. Greenfeld, 564 F.Supp. at 278-79 (also finding racketeering injury “analytically indistinguishable\" from argument that RICO applies only to organized crime); Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 567 F.Supp. 1146, 1157 (D.NJ.1983). Commentators too have disagreed about the propriety of a \"racketeering injury\" requirement. Compare Note, Civil RICO: The Temptation and Impropriety of Judicial Restriction, 95 Harv.L.Rev. 1101, 1109-14 (1982) (limitation unprincipled) [hereinafter \"Note, Civil RICO”] with Comment, Reading the \"Enterprise” Back Into RICO: Sections 1962 and 1964(c), 76 Nw.L. Rev. 100, 126-32 (1981) (supporting a standing requirement); Bridges, supra note" }, { "docid": "22213422", "title": "", "text": "v. Morgan Stanley, Inc., 719 F.2d 5, 22 (2d Cir.1983) (rejecting district court’s view that plaintiff in private RICO action brought under 18 U.S.C. § 1964(c) was required to allege facts showing that the enterprise had an “ ‘independent economic significance from the pattern of racketeering activity’ ” (quoting 553 F.Supp. 1347, 1363 (S.D.N.Y.1983))), cert. denied, 465 U.S. 1025, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984). Thus, prior to the Supreme Court’s 1985 decision in Sedima and our interpretation of Sedima in United States v. Ianniello, 808 F.2d 184 (2d Cir.1986), cert. denied, — U.S.-, 107 S.Ct. 3229, 97 L.Ed.2d 736 (1987), this circuit had liberally construed the RICO pattern element as not requiring, in connection with § 1962(c), that the predicate acts be “specifically” related to each other, so long as they were related to the conduct of the affairs of the enterprise, and as not requiring, in connection with § 1962(b), that the predicate acts be separated in time or place or be parts of separable episodes or in furtherance of different schemes. In the meantime, as discussed below, this Court gave more restrictive interpretations in civil RICO cases to other preconditions to recovery, which led to the Supreme Court’s decision in Sedima. B. Sedima’s Footnote lfy and Ianniello’s Interpretation of It In Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346, the Supreme Court considered for the first time the civil action provisions of RICO, reversing a decision of this Court which held that a civil action could not be maintained unless (1) the defendant had already been convicted of a predicate racketeering act or of a RICO violation, and (2) the plaintiff could show special racketeering injury. See Sedima, S.P.R.L. v. Imrex Co., 741 F.2d 482 (2d Cir.1984), rev’d, 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985); see also Bankers Trust Co. v. Rhoades, 741 F.2d 511 (2d Cir.1984) (plaintiff required to show injury flowing from “pattern” rather than from individual racketeering acts), vacated and remanded, 473 U.S. 922, 105 S.Ct. 3550, 87 L.Ed.2d 673 (1985). The Sedima Court" }, { "docid": "7620142", "title": "", "text": "is unwise for courts to restrict themselves with self-imposed, rigid analytical frameworks. . Victims of \"predicate act injury\" under Section 1962(b) would not have standing to sue when the affiliated \"enterprise” is organized solely for criminal purposes. Section 1962(b) proscribes the acquisition of an interest of an \"enterprise” through a \"pattern of racketeering activity.\" 18 U.S.C. § 1962(b). In this situation, the \"predicate act injury” plaintiffs are racketeers themselves who have lost control of their criminal organization to other racketeers. To allow one racketeer to sue another under RICO does not further the statute’s objective of eradicating organized crime. . This analysis applies equally to suits under Section 1962(b). . Some courts have limited RICO by requiring an allegation of a link to organized crime. See e.g. Hokama v. E.F. Hutton & Co., Inc., 566 F.Supp. 636, 642-643 (C.D.Cal.1983). However, most courts, including every circuit to consider the question, have rejected this requirement. See Moss v. Morgan Stanley, 719 F.2d 5, 21 (2d Cir.1983); Schacht v. Brown, 711 F.2d 1343, 1353-1356 (7th Cir.), cert. denied, — U.S. —, 104 S.Ct. 508, 509, 78 L.Ed.2d 698 (1983); Bennett v. Berg, 685 F.2d 1053, 1063-1064 (8th Cir.1982). The Ninth Circuit has held that the prosecutor need not prove that the defendant has organized crime connections in criminal prosecutions. United States v. Campanale, 518 F.2d 352, 363 (9th Cir.1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976). The reasoning behind the rejection of an organized crime requirement is that Congress considered and rejected such a proposal because of Constitutional problems. See Note, Civil RICO: The Temptation and Impropriety of Judicial Restriction, 95 Harv.L.Rev. 1101, 1107-1108 (1982). Accordingly, this court refuses to require such an allegation." }, { "docid": "18745522", "title": "", "text": "Plaintiff-Appellant, at 17-18, 19-21. Although the moving defendants respond to these contentions, Brief For Moving Defendants-Appellees at 4-5, the bulk of their argument on appeal involves issues not addressed by the district court. Since we agree with Plains that neither RICO nor COCCA requires it to plead a connection between defendants’ activities and organized crime, we need not reach its contention that the amended complaint adequately alleges such a connection. And since the district court has not had an opportunity to consider the additional issues which the defendants present in their brief, we decline to do so. On the holding which was made, we disagree with the district court’s dismissal of the four counts and must reverse. II We disagree with the view that, to state such a RICO claim, a plaintiff must allege and prove that the conduct described as “racketeering activity” is connected to criminal conduct of an origanized nature. We are persuaded by the opinions which have held that there is no such requirement in a civil setting. See, e.g., Moss v. Morgan Stanley, Inc., 719 F.2d 5, 20-21 (2d Cir. 1983), cert. denied sub nom. Moss v. Newman, 465 U.S. 1025, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984); Gilbert v. PrudentialBache Securities, Inc., 769 F.2d 940, 942 (3d Cir.1985); Owl Const. Co. Inc. v. Ronald Adams Contractor, Inc., 727 F.2d 540, 542 (5th Cir.), cert. denied, — U.S. -, 105 S.Ct. 118, 83 L.Ed.2d 61 (1984); Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648, 654 (7th Cir.1984); Bennett v. Berg, 685 F.2d 1053, 1063-64 (8th Cir.1982), aff'd on reh. en banc, 710 F.2d 1361 (8th Cir.), cert. denied sub nom. Prudential Insurance Co. v. Bennett, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). Also in accord with this position are those courts which refuse to recognize such a requirement in a criminal setting. See, e.g., United States v. Uni Oil, Inc., 646 F.2d 946, 953 (5th Cir.1981), cert. denied sub nom. Corbitt v. United States, 455 U.S. 908, 102 S.Ct. 1254, 71 L.Ed.2d 446 (1982); United States v. Aleman, 609 F.2d 298, 303" }, { "docid": "10959405", "title": "", "text": "for standing to bring a civil RICO damage action is an allegation that the plaintiff has suffered a racketeering enterprise injury.... A racketeering enterprise injury might occur, for example, if a civil RICO defendant’s ability to harm the plaintiff is enhanced by the infusion of money from a pattern of racketeering activity into the enterprise. A number of courts have adopted the requirement that a RICO plaintiff plead a racketeering enterprise injury. See, e.g., Sedima S.P.R.L. v. Imrex Co., Inc., 574 F.Supp. 963 (E.D.N.Y.1983); In re Action Industries Tender Offer, 572 F.Supp. 846 (E.D.Va.1983); Friedlander v. Nims, 571 F.Supp. 1188 (N.D.Ga.1983); Harper v. New Japan Securities International, Inc., 545 F.Supp. 1002 (C.D.Cal.1982). A roughly equal number of courts have rejected the requirement that there be some showing of special racketeering enterprise injury before the plaintiff can recover under § 1962(c). See, e.g., Sutliff Inc. v. Donovan Companies, Inc., 727 F.2d 648 (7th Cir.1984); Bennett v. Berg, 710 F.2d 1361 (8th Cir.) (en banc), cert. denied, — U.S. -, 104 S.Ct. 527, (1983), affirming, 685 F.2d 1053 (8th Cir.1982); In re Longhorn Securities Litigation, 573 F.Supp. 255 (W.D.Ok.1983); Crocker National Bank v. Rockwell International Corp., 555 F.Supp. 47 (N.D.Cal.1982). Those courts that have accepted the racketeering enterprise injury requirement have done so chiefly for two reasons. Some courts have found that Congress, in requiring that a civil RICO plaintiff prove injury “by reason of § 1962,” explicitly used language nearly identical to the language found in § 4 of the Clayton Act. Since the Supreme Court has interpreted the “by reason of” requirement of § 4 of the Clayton Act to require that a plaintiff prove anti-trust injury, not just “general” damage, Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. 429 U.S. 477, 488-89, 97 S.Ct. 690, 697-98, 50 L.Ed.2d 701 (1977), these courts have held that RICO’s remedies should similarly be restricted to a special kind of injury, racketeering enterprise injury. See, e.g., Harper v. New Japan Securities International, Inc., 545 F.Supp. at 1007. Other courts have restricted RICO’s scope to plaintiffs who allege racketeering enterprise injury on the basis of the" }, { "docid": "22112051", "title": "", "text": "has been rejected in the Seventh and Eighth Circuits. Schacht v. Brown, 711 F.2d 1343, 1359 (7th Cir.), cert, denied, — U.S.-,-, 104 S.Ct. 508, 509, 78 L.Ed.2d 698 (1983). Bennett v. Berg, 685 F.2d 1053, 1058 (8th Cir. 1982), affd in part on rehearing en banc, 710 F.2d 1361 (8th Cir.), cert, denied, — U.S. -, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). The Supreme Court has specifically rejected an approach that would require an allegation that the enterprise be “illegitimate.” United States v. Turkette, 452 U.S. 576, 586-87, 101 S.Ct. 2524, 2530, 69 L.Ed.2d 246 (1981). What remains is the theory adopted by some courts and that, together with the prior conviction requirement, the majority embraces bere. That is, there must be an allegation of an injury from the “racketeering enterprise,” a so-called “racketeering injury.” Such has also been described as an injury “by reason of conduct the RICO act was designed to prevent,” and as “something more than” the injury caused by the predicate acts alone. How one can distinguish between the injury caused by the predicate acts and the injury done by the enterprise is not explained. My colleagues state that “only when injury caused by this kind of harm can be shown” (emphasis added) does a plaintiff have standing under § 1964. “This kind of harm,” in turn, occurs when “mobsters, either through the infiltration of legitimate enterprises or through the activities of illegitimate enterprises, cause systemic harm to competition and the market, and thereby injure investors and competitors.” This formulation is no more than a euphemism for an “organized crime” nexus requirement that should not be adopted by this Court after its rejection by the lawmakers. Other courts, the statute’s congressional sponsors and commentators do not assign to. civil RICO a scope on such a lilliputian scale. In Schacht v. Brown, supra, the Seventh Circuit evaluated a similar standing requirement and stated that one trouble with “judicial pruning of RICO’s civil provisions ... where business fraud is alleged [is that] ... there is simply no legitimate principled criterion” that accomplishes the distinction between ordinary" }, { "docid": "4985726", "title": "", "text": "maintain, directly or. indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. 18 U.S.C. § 1962 (1976). In addition to criminal remedies, RICO provides a private right of action for “any person injured in his business or property by reason of a violation of section 1962.” Treble damages attach to a RICO verdict as well. 18 U.S.C. § 1964(c). However, the civil plaintiff is not required to prove a prior conviction, see, e.g., Usaco Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94, 95 n. 1 (6th Cir.1982); Mauriber v. Shearson/American Express, Inc., 546 F.Supp. 391, 396 (S.D.N.Y.1982); State Farm Fire & Cas. Co. v. Estate of Caton, 540 F.Supp. 673, 675-77 (N.D.Ind.1982); Glusband v. Benjamin, 530 F.Supp. 240, 241 (S.D.N.Y.1981); Heinold Commodities, Inc. v. McCarty, 513 F.Supp. 311, 314 (N.D.Ill.1979), and must only prove the statutory elements of a cause of action by a preponderance of the evidence, see United States v. Cappetto, 502 F.2d 1351, 1357 (7th Cir.1974); Parnes v. Heinold Commodities, Inc., 487 F.Supp. 645, 647 (N.D.Ill.1980); Farmers Bank of Delaware v. Bell Mortgage Company, 452 F.Supp. 1278, 1280 (D.Del.1978). Finally, in interpreting and applying all of RICO’s provisions, Congress has dictated that the statute “shall be liberally construed to effectuate its remedial purposes.” Pub.L. No. 91-452, 84 Stat. 922, title IX § 904(a) (1970). 2. Connection With Organized Crime Resting on RICO’s articulated purpose, defendants argue that the failure of the complaint to allege any link to organized crime is fatal to plaintiffs’ claim. Citing United Steelworkers of America v. Weber, 443 U.S. 193, 201, 99 S.Ct. 2721, 2726, 61 L.Ed.2d 480 (1979), defendants contend that although the claim may be within the letter of the statute, it does not" }, { "docid": "7802095", "title": "", "text": "the individual predicate acts of racketeering. Therefore, I must resolve the question left open in General Accident. Neither defendant’s arguments on the present motion nor the case law since the date of the General Accident opinion have, in my view, strengthened the arguments in support of a racketeering enterprise injury requirement. Consequently, I retain the view expressed in that opinion that civil RICO liability does not depend upon pleading or proof of a unique injury other than the injury caused by the predicate racketeering acts. For the reasons stated in General Accident and the decisions cited therein which have reached the same conclusion, I conclude that a racketeering enterprise injury is not essential to pleading or proof of a civil RICO claim. c) Need to establish a link to organized crime Defendant also contends that a civil RICO plaintiff must establish a nexus between the RICO claim and organized crime. E.g., Gilbert v. Prudential-Bache Securities, Inc. (CCH) Fed.Sec.L.Rep. ¶ 91,-573 (E.D.Pa.1984) interlocutory appeal pending No. 84-1283 (3d Cir.); American Savings Ass’n v. Sierra Federal Savings & Loan Ass’n, 586 F.Supp. 888 (D.Colo.1984); Bruns v. Ledbetter, 583 F.Supp. 1050 (S.D.Cal.1984); Hokama v. E.F. Hutton & Co., 566 F.Supp. 636 (C.D.Cal.1983); Noland v. Gurley, 566 F.Supp. 210 (D.Colo.1983) ; Adair v. Hunt International Resources Corp., 526 F.Supp. 736 (N.D.Ill.1981); Barr v. WUI/TAS, 66 F.R.D. 109 (S.D.N.Y.1975). See also Aliberti v. E.F. Hutton & Co., 591 F.Supp. 632 (D.Colo.1984) . However, as plaintiffs note, every appellate court which has considered this issue to date, has concluded that no nexus between the claim and organized crime need be pleaded or proven. E.g., Owl Construction Co. v. Ronald Adams Contractor, 727 F.2d 540 (5th Cir.1984); Moss v. Morgan Stanley, Inc., 719 F.2d 5 (2d Cir.1983); Schacht v. Brown, 711 F.2d 1343 (7th Cir.1983) , cert. denied, — U.S. -, 104 S.Ct. 508, 78 L.Ed.2d 698 (1983); Bennett v. Berg, 685 F.2d 1053 (8th Cir.1982), aff'd en banc, 710 F.2d 1361 (1983), cert. denied sub nom. Prudential Insurance Co. v. Bennett, — U.S. -, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). In addition, the great majority" } ]

[ { "docid": "16238795", "title": "", "text": "appealed the bankruptcy court decision to the district court, which first held that the question of whether Weinschneider’s claim against Burton was part of the bankruptcy estate raised an issue of fact, precluding summary judgment. The district court went on, however, to find that the release and covenant not to sue signed by the Trustee in 1996 were not fraudulently induced by Weinsch-neider and that those documents, by their terms, barred the Trustee’s suit. The court therefore entered judgment in favor of Weinschneider, and the Trustee brought this appeal. We affirm the judgment of the district court. II. ANALYSIS We review the bankruptcy court's factual findings for clear error, while conclusions of law by both the bankruptcy court and the district court are reviewed de novo. In re Image Worldwide, Ltd., 139 F.3d 574, 576 (7th Cir.1998). The disposition of cross-motions for summary judgment is reviewed de novo, with all the facts and the inferences therefrom viewed in a light most favorable to each nonmoving party. Ozlowski v. Henderson, 237 F.3d 837, 839 (7th Cir.2001) (citing Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir.1998)). Summary judgment in favor of one party is appropriate when the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In this appeal, the Trustee first argues that the district court erred in reversing the bankruptcy court’s determination that Weinschneider’s claim against Burton and its principals was part of the bankruptcy estate. The bankruptcy court found that Weinschneider’s claim arose out of activities rooted in his prebankruptcy past, holding that the claim was therefore part of the bankruptcy estate. The district court disagreed, finding that, for summary judgment purposes, an issue of material fact had been raised with respect to whether Weinschneider’s interest in Burton was secured pre- or post-bankruptcy. We need not consider such intricate questions of timing, however, as the second issue" } ]

[ { "docid": "7017110", "title": "", "text": "overpayments and funds received as educational benefits, scholarships, or stipends, see Federal Debt Collection Procedures Act of 1990, Pub. L. No. 101-647, § 3621(1), 104 Stat. 4933, 4964-65, and increased the period of non-dischargeability from five to seven years, see id. § 3621(2), 104 Stat. at 4965. It also applied § 523(a)(8) to Chapter 13 cases. See Student Loan Default Prevention Initiative Act of 1990, Pub. L. No. 101-508, § 3007(b), 104 Stat. 1388, 1388-28. Thus, although concern for the federally guaranteed loan programs provided the original impetus for § 523(a)(8), the exception has consistently expanded to cover other educational debts. With this legislative history in mind, we turn to the merits of this appeal. B. Standard of Review Disposition of cross motions for summary judgment is reviewed de novo. See Hoseman v. Weinschneider, 322 F.3d 468, 473 (7th Cir.2003); Ozlowski v. Henderson, 237 F.3d 837, 839 (7th Cir.2001) (citing Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir.1998)). All facts and inferences are viewed in the light most favorable to each nonmoving party; summary judgment is appropriate when the record reveals no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Hoseman, 322 F.3d at 473 (citing Fed.R.Civ.P. 56(c)). C. Interpretation of § 523(a)(8) The question presented by this appeal is whether an unpaid balance on a student account meets the definition of an educational loan under § 523(a)(8) and is therefore excepted from discharge in bankruptcy proceedings. Exceptions to discharge “are confined to those plainly expressed in the Code ... and are narrowly construed in favor of the debtor.” DeKalb County Div. of Family & Children Servs. v. Platter (In re Platter), 140 F.3d 676, 680 (7th Cir.1998) (internal citations omitted). In interpreting statutory provisions, we begin with the language of the statute itself. See In re Merchants Grain, Inc., 93 F.3d 1347, 1353 (7th Cir.1996). Section 523(a)(8) excepts from discharge any “debt ... for an educational loan made ... by a governmental unit,” but the statute leaves the term “loan” undefined. We therefore must turn to" }, { "docid": "7017109", "title": "", "text": "on student loan programs, Congress has consistently expanded § 523(a)(8). The legislative developments are thoroughly explored in Johnson v. Missouri Baptist College (In re Johnson), 218 B.R. 449, 453-54 (8th Cir. BAP 1998), and are also discussed in Renshaw, 222 F.3d at 87-88. In brief, Congress has expanded § 523(a)(8) in the following ways: In 1979, Congress effectively equalized the treatment of loans administered by for-profit educational institutions and non-profit educational institutions by amending the language of the provision; under the original version, only loans administered by non-profit educational institutions were covered. See Bankruptcy Act — Student Loan Debts, Pub. L. No. 96-56, § 3(1), 93 Stat. 387 (1979). Also, deferment periods were excluded from the calculation of the repayment period. See id. § 3(2). In 1984, Congress amended the language to include educational loans from “nonprofit institutions” rather than only “nonprofit institutions of higher education.” See Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, § 454(a)(2), 98 Stat. 333, 375-76. In 1990, Congress expanded the exception to cover educational benefit overpayments and funds received as educational benefits, scholarships, or stipends, see Federal Debt Collection Procedures Act of 1990, Pub. L. No. 101-647, § 3621(1), 104 Stat. 4933, 4964-65, and increased the period of non-dischargeability from five to seven years, see id. § 3621(2), 104 Stat. at 4965. It also applied § 523(a)(8) to Chapter 13 cases. See Student Loan Default Prevention Initiative Act of 1990, Pub. L. No. 101-508, § 3007(b), 104 Stat. 1388, 1388-28. Thus, although concern for the federally guaranteed loan programs provided the original impetus for § 523(a)(8), the exception has consistently expanded to cover other educational debts. With this legislative history in mind, we turn to the merits of this appeal. B. Standard of Review Disposition of cross motions for summary judgment is reviewed de novo. See Hoseman v. Weinschneider, 322 F.3d 468, 473 (7th Cir.2003); Ozlowski v. Henderson, 237 F.3d 837, 839 (7th Cir.2001) (citing Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir.1998)). All facts and inferences are viewed in the light most favorable to each nonmoving party;" }, { "docid": "19073130", "title": "", "text": "the prohibitions contained in the new law. S. Rep.. No. 96-230, at 1-2 (1979), reprinted in 1979 U.S.C.C.A.N. 936, 936-37. Furthermore, the 1979 amendment excluded deferment periods from calculation of the repayment period. Pub.L. No. 96-56, § 3(2) (1979). Congress enacted the amendment primarily to prohibit debtors from deferring payments for the nondisehargeability period: Loan programs typically provide periods of deferment during which a borrower’s obligation to repay his loan is suspended. Using the Guaranteed Student Loan Program as an example, a student may defer repayment for an unlimited time if the student resumes study, for up to three years if the student serves in the Armed Forces, the Peace Corps or VISTA and for up to one year if the student is unemployed. Therefore, it is possible for the first five years of the repayment period on a student’s loan to run without the student having an actual repayment obligation during all of that period. S.Rep. No. 96-230, at 3 (1979), reprinted in 1979 U.S.C.C.A.N. 936, 938. 1984, Amendments In 1984, Congress again expanded the scope of 11 U.S.C. § 523(a)(8) by deleting language limiting dischargeability protections to loans issued by nonprofit institutions of higher education. Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, § 454(a)(2), 98 Stat. 375. 1990 Amendments In 1990, Congress expanded the period of repayment from five to seven years. Federal Debt Collection Procedures Act of 1990, Pub.L. No. 101-647, § 3621(2), 104 Stat. 4933. Finally, the Student Loan Default Prevention Initiative Act of 1990 applied § 523(a)(8) to Chapter 13 cases. The Debate Continues In 1994, Congress again created a commission to review bankruptcy laws. In its October 20, 1997 report, the National Bankruptcy Review Commission recommended to Congress that the exception to discharge for student loans be eliminated: The Commission recommends that Congress eliminate section 523(a)(8) so that most student loans are treated like all other unsecured debts. In so doing, the dischargeability provisions would be consistent with federal policy to encourage educational endeavors. The Recommendation would also address the numerous application problems that have resulted from the current nondisehargeability" }, { "docid": "15572955", "title": "", "text": "Student Loan Debt in Chapter 13, 2000 U. Ill. L.Rev. 1311, 1315-16 (2000). Limitations on the discharge ability of student loans serve two purposes: (1) “preventing abuses of the educational loan system by restricting the ability to discharge a student loan shortly after a student’s graduation,” and (2) “safeguarding the financial integrity of governmental entities and nonprofit institutions that participate in educational loan programs.” Collier, supra, ¶ 523.14[1]; see also Educ. Credit Mgmt. Corp. v. Polleys, 356 F.3d 1302, 1306 (10th Cir.2004). Since before 1978, when the then-governing Bankruptcy Act permitted student loans to be discharged, the requirements for student loan discharge have become progressively more restrictive. In 1978, Congress enacted the Bankruptcy Code making student loans nondischarge able in Chapter 7 cases for the first five-years of repayment unless it would constitute an “undue hardship.” Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, § 523(a)(8), 92 Stat. 2549, 2591 (1978). In 1990, the waiting period was extended to seven years. Federal Debt Collection Procedures Act of 1990, Pub.L. No. 101-647, § 3621(2), 104 Stat. 4933, 4965 (1990). Also in 1990, Congress added these restrictions on student loan discharge to bankruptcy cases filed under Chapter 13. Student Loan Default Prevention Initiative Act of 1990, Pub.L. No. 101-508, § 3007, 104 Stat. 1388,1388-28 (1990). In 1998, Congress amended § 523 of the Bankruptcy Code to its current form, eliminating the option for student loan discharge after seven years. Higher Education Amendments of 1998, Pub.L. No. 105-244, Title IX, § 971(a), 112 Stat. 1581, 1837 (1998). Accordingly, now student loans may not be discharged in Chapter 7 or 13 cases, except for the one nar row circumstance when “excepting such debt from discharge ... would impose an undue hardship on the debtor and the debtor’s dependents.” 11 U.S.C. § 523(a)(8) (emphasis supplied). Undue Hardship. To prove “undue hardship,” the debtor must establish three elements: (1) the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living if forced to repay the loans; (2) additional circumstances exist indicating that this state of affairs is likely to persist for a" }, { "docid": "17544401", "title": "", "text": "sentenced to 25 years in a debtors’ prison without walls.” 366 B.R. at 916, 918. Reviewing the determination of undue hardship de novo, we reverse. See In re Long, 322 F.3d 549, 553 (8th Cir.2003) (standard of review). I. Section 523(a)(8) of the Bankruptcy Code provides that debts for educational loans “made, insured or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit,” may not be discharged unless “excepting such debt from discharge ... would impose an undue hardship on the debtor and the debtor’s dependents.” Federal government student loan programs began in 1958. In 1973, to curb perceived abuses, the Commission on the Bankruptcy Laws of the United States recommended that “educational loans be nondischargeable unless the first payment falls due more than five years prior to the petition.” H.R. Doc. No. 93-137 (1973), reprinted in B App. Collier on Bankruptcy, pt. 4(c), at 4-132 (15th rev. ed.2008). Congress enacted this recommendation in the Bankruptcy Reform Act of 1978. Pub.L. No. 95-598, § 523(a)(8), 92 Stat. 2549, 2591 (1978), codified at 11 U.S.C. § 523(a)(8). In 1990, Congress lengthened from five to seven years the period beyond which government-assisted student loans became automatically dischargeable. Pub.L. No. 101-647, § 3621, 104 Stat. 4789, 4964-65 (1990), amending 11 U.S.C. § 523(a)(8)(A). Then, in the Higher Education Amendments of 1998, Congress eliminated this time limitation, making “undue hardship” the only exception to non-dischargeability. Pub.L. No. 105-244, § 971(a), 112 Stat. 1581, 1837 (1998). We apply a totality-of-the-circumstances test in determining undue hardship under § 523(a)(8). Reviewing courts must consider the debtor’s past, present, and reasonably reliable future financial resources, the debtor’s reasonable and necessary living expenses, and “any other relevant facts and circumstances.” Long, 322 F.3d at 554. The debtor has the burden of proving undue hardship by a preponderance of the evidence. The burden is rigorous. “Simply put, if the debt- or’s reasonable future financial resources will sufficiently cover payment of the student loan debt — while still allowing for a minimal standard of living — then the debt should" }, { "docid": "19073146", "title": "", "text": "of any applicable suspension of the repayment period) before the date of the filing of the petition....'\" Federal Debt Collection Procedures Act of 1990, Pub.L. No. 101-647, § 3621, 104 Stat. 4964-65 (emphasis added). .\"Section 1328(a)(2) of title 11, United States Code, is amended by striking 'section 523(a)(5)’ and inserting 'paragraph (5) or (8) of section 523(a).’ \" Student Loan Default Prevention Initiative Act of 1990, Pub.L. No. 101-508, § 3007(b), 104 Stat. 1388-28 (emphasis added). . One justification for the nondischargeability of student loans focuses on the special status of student borrowers. Since they lack the normal indicia of creditworthiness — income and collateral — most students would not even qualify for a loan. \"[E]ducational loans are different from most loans. They are made without business considerations, without security, without cosigners, and relying for repayment solely on the debtor’s future increased income resulting from the education.\" H.R.Rep. No. 95-595, at 133 (1978), reprinted in 1978 U.S.C.C.A.N. 5963, 6094. At least one commentator has argued for limitations on the dischargeability of student loans because students, unlike other debtors, retain the subject matter of the loan transaction in the form of an income-generating degree: The concept of bankruptcy is to give those who aren't able to meet their obligations an opportunity to throw both their assets and liabilities into a legal proceeding wherein their creditors liquidate the bankrupt’s assets and share in the distribution of the revenues in proportion to the unpaid credit extended to the bankrupt. The bankrupt is intended to come out \"whole” but not with the assets. In the case of student borrowers, the asset acquired by the credit extended is a college degree, a license to practice, increased learning, a capacity to perform specific tasks and often a more socially adjusted individual. When the bankrupt walks away with these assets, how can there be a true bankruptcy? Letter from Kenneth R. Reeher, Commonwealth of Pennsylvania Higher Education Assistance Agency to Hon. Don Edwards (January 28, 1976)." }, { "docid": "7017111", "title": "", "text": "summary judgment is appropriate when the record reveals no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Hoseman, 322 F.3d at 473 (citing Fed.R.Civ.P. 56(c)). C. Interpretation of § 523(a)(8) The question presented by this appeal is whether an unpaid balance on a student account meets the definition of an educational loan under § 523(a)(8) and is therefore excepted from discharge in bankruptcy proceedings. Exceptions to discharge “are confined to those plainly expressed in the Code ... and are narrowly construed in favor of the debtor.” DeKalb County Div. of Family & Children Servs. v. Platter (In re Platter), 140 F.3d 676, 680 (7th Cir.1998) (internal citations omitted). In interpreting statutory provisions, we begin with the language of the statute itself. See In re Merchants Grain, Inc., 93 F.3d 1347, 1353 (7th Cir.1996). Section 523(a)(8) excepts from discharge any “debt ... for an educational loan made ... by a governmental unit,” but the statute leaves the term “loan” undefined. We therefore must turn to the traditional understanding of the term “loan” under common law. See NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981) (“Where Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.”); In re Clark, 738 F.2d 869, 872 (7th Cir.1984) (“Absent a persuasive reason to the contrary, we are to attribute to the words of a statute their common meaning.”). This court has not previously addressed the scope of the term “loan” in § 523(a)(8). The Second and Third Circuits, however, have determined that unpaid student debts like Ms. Chambers’ do not qualify as educational loans. See Boston Univ. v. Mehta (In re Mehta), 310 F.3d 308 (3d Cir.2002); Renshaw, 222 F.3d at 82. Their analysis is instructive. Renshaw involved a consolidated appeal of two separate eases. In the first case, Cazenovia College v. Renshaw, the student signed a “Reservation Agreement” with the" }, { "docid": "8048029", "title": "", "text": "States Dep’t of Health and Human Servs. v. Vretis (In re Vre tis), 56 B.R. 156, 157 (Bankr.M.D.Fla.1985) (finding that stipend that provided for rent and living expenses was not dischargeable). . Ealy v. First Nat’l Bank (In re Ealy), 78 B.R. 897, 898 (Bankr.C.D.Ill.1987) (finding portion of loan that student used to purchase truck, pay off wife's car, and pay for other miscellaneous expenses dischargeable in bankruptcy); United States Dep’t of Health & Human Servs. v. Brown (In re Brown), 59 B.R. 40, 43 (Bankr.W.D.La.1986) (instructing government to separate portion of stipend spent on tuition and books from portion spent on rent and living expenses); Dep’t of Mental Health, State of Missouri v. Shipman (In re Shipman), 33 B.R. 80, 82 (Bankr.W.D.Mo.1983) (discharging stipend partially because the debtor spent the proceeds on rent and living expenses). . We review a bankruptcy court's legal conclusions de novo. Texas Lottery Comm’n v. Tran (In re Tran), 151 F.3d 339, 342 (5th Cir.1998). Summaiy judgment decisions and statutory interpretation questions are legal findings that we review de novo. Samson v. Apollo Resources, Inc., 242 F.3d 629, 633 (5th Cir.) (statutory interpretation), cert. denied, -U.S.-, 122 S.Ct. 63, 151 L.Ed.2d 31 (2001); Herman v. Holiday, 238 F.3d 660, 663 (5th Cir.2001) (summary judgment). . In re Petzman, 233 B.R. at 580; In re Joyner, 171 B.R. at 764-65. . Before the 1990 amendments, § 523(a)(8) excluded from discharge “an educational loan made, insured or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution.” 11 U.S.C. § 523(a)(8) (1988). To expand § 523(a)(8)'s scope, the 1990 amendments added the categories of (1) overpaying a grant and (2) scholarship funds or stipends. Crime Control Act of 1990, Pub.L. No. 101-647, § 3621(a), 104 Stat. 4964, 4964-65 (1990). See Santa Fe Med. Servs., Inc. v. Segal (In re Segal), 57 F.3d 342, 348-49 (3d Cir.1995). . “An 'educational benefit overpayment’ is an overpayment from a program such as the GI Bill under which where students receive periodic payments while they are enrolled" }, { "docid": "8048030", "title": "", "text": "novo. Samson v. Apollo Resources, Inc., 242 F.3d 629, 633 (5th Cir.) (statutory interpretation), cert. denied, -U.S.-, 122 S.Ct. 63, 151 L.Ed.2d 31 (2001); Herman v. Holiday, 238 F.3d 660, 663 (5th Cir.2001) (summary judgment). . In re Petzman, 233 B.R. at 580; In re Joyner, 171 B.R. at 764-65. . Before the 1990 amendments, § 523(a)(8) excluded from discharge “an educational loan made, insured or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution.” 11 U.S.C. § 523(a)(8) (1988). To expand § 523(a)(8)'s scope, the 1990 amendments added the categories of (1) overpaying a grant and (2) scholarship funds or stipends. Crime Control Act of 1990, Pub.L. No. 101-647, § 3621(a), 104 Stat. 4964, 4964-65 (1990). See Santa Fe Med. Servs., Inc. v. Segal (In re Segal), 57 F.3d 342, 348-49 (3d Cir.1995). . “An 'educational benefit overpayment’ is an overpayment from a program such as the GI Bill under which where students receive periodic payments while they are enrolled in school, but if the students receive payments after they have left the school, that is an educational benefit overpayment.” Cazenovia College v. Renshaw (In re Renshaw), 229 B.R. 552, 556 & n. 8 (BAP 2d Cir.1999), aff'd, 222 F.3d 82 (2d Cir.2000). New Mexico Inst. of Mining and Tech. v. Coole (In re Coole), 202 B.R. 518, 519 (Bankr.D.N.M.1996); Alibatya v. New York Univ. (In re Alibatya), 178 B.R. 335, 338 (Bankr.E.D.N.Y.1995); Johnson v. Va. Commonwealth Univ. (In re Johnson), 222 B.R. 783, 786 (Bankr.E.D.Va.1998). .E.g., In re Renshaw, 229 B.R. at 559-60 (characterizing question as whether debtor received an \"educational loan” and not an “educational benefit loan”); Shaffer v. United Student Aid Funds (In re Shaffer), 237 B.R. 617, 618 (Bankr.N.D.Tex.1999) (same); In re Pelzman, 233 B.R. at 576-77 (same); In re Alibatya, 178 B.R. at 338 (“The term 'educational’ is merely an adjective describing 'loan.' ”). . Other dictionaries contain even broader definitions of \"stipend.” Black's Law Dictionary at 1426 (West Deluxe 7th ed. 1999) (“A salary or other regular, periodic payment.”);" }, { "docid": "21098293", "title": "", "text": "the petition; or (B) excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor’s dependents.... Bankruptcy Reform Act of 1978 § 523(a)(8), 92 Stat. at 2590-91. Congress has amended § 523(a)(8) a number of times. In 1979, to avoid disparities in the treatment of loans from different sources (i.e., for-profit as opposed to non-profit lenders) with respect to their dischargeability in bankruptcy, it broadened the subsection to cover “any educational loan made, insured, or guaranteed by a governmental unit, or made under any program ... funded by a governmental unit or nonprofit institution of higher learning.” Bankruptcy Act — Student Loan Debts, Pub.L. No. 96-56, § 3(1), 93 Stat. 387 (1979); S.Rep. No. 96-230, at 1-2 (1979), reprinted in 1979 U.S.C.C.A.N. 936, 936-37. In 1984, Congress expanded the exception to apply to loans made under a program funded by any nonprofit insti tution and made stylistic changes to the section. See Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, § 454(a)(2), 98 Stat. 333, 375-76 (1984). The 1990 amendments further expanded the exception to cover certain educational benefit overpayments as well as obligations to repay funds received as educational benefits, scholarships, or stipends. See Federal Debt Collection Procedures Act of 1990, Pub.L. No. 101-647, § 3621(1), 104 Stat. 4933, 4964-65 (1990). The 1998 amendments are not relevant to the instant cases, which were initiated in 1997, because they apply only to cases commenced after October 7, 1998. See Higher Education Amendments of 1998, Pub.L. 105-244, § 971(b), 112 Stat. 1581, 1837 (1998). II Extension of a “Loan” A. Definition of Loan Not Met With the policy concerns and relevant legislative history firmly in hand, we turn to the facts of these two cases to see if in either we can discern the kind of educational loan the statute envisions as an exception to discharge. Cazenovia and St. Rose maintain that by allowing Renshaw and Regner, respectively, to attend classes without paying tuition, the colleges extended to them an educational loan excepted from discharge by § 523(a)(8). The students" }, { "docid": "12573574", "title": "", "text": "Section 751 of the Public Health Service Act (42 U.S.C. § 294t) established the National Health Service Corps Scholarship Program and authorized the Secretary of Health, Education and Welfare to provide applicants selected to be participants in the program with scholarship awards. . For ease of reference and where appropriate, we will occasionally refer to Dr. Crowe and Dr. Segal as the \"debtors.\" . Although the promissory note indicates that the amount owed was $200,000, it is undisputed that the actual amount of the debt was $182,619.17. . The Department of Health, Education and Welfare was redesignated the Department of Health and Human Services in 1979. Pub.L. 96-88, Title V, § 509(b), Oct. 17, 1979, 93 Stat. 695. . There are two statutory exceptions to the non-dischargeabilily of a student loan which remain available to both the student and non-student debtor, i.e., that the loan came due more than seven years before the bankruptcy filing, 11 U.S.C. § 523(a)(8)(A), or that non-discharge of the debt would create “undue hardship,\" 11 U.S.C. § 523(a)(8)(B). In re Pelkowski, 990 F.2d 737, 742 (3d Cir.1993). The Debtors, however, do not assert the applicability of either exception in this proceeding. . The bankruptcy court elected not to determine the dischargeability of the debt as to Dr. Segal because its determination that the Santa Fe loan did not represent an educational debt within the meaning of section 523(a)(8) proved to be dispos-itive. Appellees argue that the circumstances of this case, i.e., the nature of the loan and the timing of Dr. Segal’s co-execution, distinguish it from Pelkowski and that a remand for further argument on the issue of dischargeability with respect to Dr. Segal as co-obligor would be proper in the event we decide section 523(a)(8) does not apply to the loan. Because we will affirm the district court’s determination that the loan is dischargeable under section 523(a)(8), this issue is moot. . The effective date of these amendments was 180 days from November 29, 1990, the date of enactment. Crime Control Act of 1990, Pub.L. No. 101-647, §§ 3621, 3631, 104 Stat. 4789, 4964-4965," }, { "docid": "15572956", "title": "", "text": "4933, 4965 (1990). Also in 1990, Congress added these restrictions on student loan discharge to bankruptcy cases filed under Chapter 13. Student Loan Default Prevention Initiative Act of 1990, Pub.L. No. 101-508, § 3007, 104 Stat. 1388,1388-28 (1990). In 1998, Congress amended § 523 of the Bankruptcy Code to its current form, eliminating the option for student loan discharge after seven years. Higher Education Amendments of 1998, Pub.L. No. 105-244, Title IX, § 971(a), 112 Stat. 1581, 1837 (1998). Accordingly, now student loans may not be discharged in Chapter 7 or 13 cases, except for the one nar row circumstance when “excepting such debt from discharge ... would impose an undue hardship on the debtor and the debtor’s dependents.” 11 U.S.C. § 523(a)(8) (emphasis supplied). Undue Hardship. To prove “undue hardship,” the debtor must establish three elements: (1) the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living if forced to repay the loans; (2) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) the debtor has made good faith efforts to repay the loans. Polleys, 356 F.3d at 1307 (citing Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395, 396 (2d Cir. 1987)). The burden of demonstrating “undue hardship” falls on the debtor. Woodcock v. Chemical Bank, NYSHESC (In re Woodcock), 45 F.3d 363, 367 (10th Cir.1995). Under the Bankruptcy Rules, the debtor must prove the elements of “undue hardship” in an adversary proceeding. Fed. R. Bankr.P. 7001(6) (defining a “proceeding to determine the dischargeability of a debt” as an adversary proceeding). An adversary proceeding is a subpart of a bankruptcy case that has all the trappings of civil litigation. Like a civil trial, adversary proceedings (1) are governed by discovery rules, id. R. 7026, (2) can be adjudicated by summary judgment, id. R. 7056, (3) are subject to the award of costs, id. R. 7054(b), and (4) are appealable, id. R. 8001(a). Furthermore, and more significantly for this case, the notice requirements" }, { "docid": "16575442", "title": "", "text": "funded in whole or in part by a governmental unit or nonprofit institution, or for an obligation to repay funds received as an educational benefit, scholarship or stipend, unless excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor’s dependents.... 11 U.S.C.A. § 523(a)(8). Thus, under § 523(a)(8), the Debtors “remain[ ] personally responsible” for their nondischargeable student loan debts, and those debts “pass or ride through the bankruptcy unaffected and are a postbankruptcy liability of the former debtor.” In re Cousins, 209 F.3d 38, 40 (1st Cir.2000) (internal quotation marks omitted). Section 523(a)(8) “was enacted to prevent indebted college or graduate students from filing for bankruptcy immediately upon graduation, thereby absolving themselves of the obligation to repay their student loans.” In re Hornsby, 144 F.3d 433, 436-37 (6th Cir.1998). The nondischargeability of student loans originally applied only to Chapter 7 bankruptcies and not Chapter 13 bankruptcies. This provided debtors seeking to discharge student loan debt an incentive to file Chapter 13 plans because courts permitted borrowers to discharge their student loan debts under Chapter 13 without a showing of undue hardship. See In re Klein, 57 B.R. 818, 820 (9th Cir. BAP 1985) (permitting discharge of student loan under Chapter 13 because “a reasonable construction of the statute requires reading Chapter 13 discharge provisions separately from Chapter 7 and that Congress intended student loans to be dischargeable under Chapter 13” (internal citations omitted)). In 1990, Congress responded by extending the nondischargeability of student loans to Chapter 13 filings. See In re Andersen, 179 F.3d 1253, 1260 n. 12 (10th Cir.1999) (stating that “prior to 1990, student loan obligations were dischargeable in chapter 13 after completion of plan payments” but that [i]n 1990, Congress amended § 1328(a)(2), adding § 523(a)(8) as an exception to discharge) (citing Student Loan Default Prevention Initiative Act of 1990, Pub.L. 101-508, §§ 3001, 3007, 104 Stat. 1388,1388-25, 1388-28 (1990)). Section 682.404(f) of Title 34 of the Code of Federal Regulations addresses the manner in which a creditor must apply payments from a student loan debtor such" }, { "docid": "21098294", "title": "", "text": "333, 375-76 (1984). The 1990 amendments further expanded the exception to cover certain educational benefit overpayments as well as obligations to repay funds received as educational benefits, scholarships, or stipends. See Federal Debt Collection Procedures Act of 1990, Pub.L. No. 101-647, § 3621(1), 104 Stat. 4933, 4964-65 (1990). The 1998 amendments are not relevant to the instant cases, which were initiated in 1997, because they apply only to cases commenced after October 7, 1998. See Higher Education Amendments of 1998, Pub.L. 105-244, § 971(b), 112 Stat. 1581, 1837 (1998). II Extension of a “Loan” A. Definition of Loan Not Met With the policy concerns and relevant legislative history firmly in hand, we turn to the facts of these two cases to see if in either we can discern the kind of educational loan the statute envisions as an exception to discharge. Cazenovia and St. Rose maintain that by allowing Renshaw and Regner, respectively, to attend classes without paying tuition, the colleges extended to them an educational loan excepted from discharge by § 523(a)(8). The students do not dispute that their class attendance was educational. Instead, they contend that whatever services or goods the college gave them did not constitute a “loan” within the meaning of the statute. The analysis of any statute must begin, of course, with its plain language, at least where its language is plain. See Patterson v. Shumate, 504 U.S. 753, 757-59, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992); Mansell v. Mansell, 490 U.S. 581, 588, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). Because Congress did not define the term “loan” for § 523(a)(8), we must interpret it according to its settled meaning under the common law. See NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981); see also In re Merchant, 958 F.2d 738, 740-41 (6th Cir.1992). The classic definition of a loan was articulated by our Court scores of years ago in In re Grand Union Co., 219 F. 353, 356 (2d Cir.1914). We paraphrase it as follows: To constitute a loan there must be (i) a contract," }, { "docid": "7017108", "title": "", "text": "funds received as an educational benefit, scholarship or stipend .... 11 U.S.C. § 523(a)(8). The current version of § 523(a)(8) is significantly broader than the exception originally enacted. In 1978, Representative Alan Ertel sponsored the amendment creating the original § 523(a)(8). He stated in debate that “the purpose of this particular amendment is to keep our student loan programs intact.” 124 Cong. Rec. H1791 (daily ed. Feb. 1, 1978). Representative Ertel noted that by allowing dischargeability of student loans “we are penalizing students who are coming along through the system.” Id. at H1792. Legislators debating the merits of the exception from discharge similarly discussed concerns with the funding of the student loan program. Id. at H1792-98. As enacted, the original exception covered debt “to a governmental unit, or a nonprofit institution of higher education, for an educational loan” unless the loan became due more than five years before the date on which the petition was filed. Pub. L. No. 95-598, § 523(a)(8), 92 Stat. 2549, 2591, 11 U.S.C. § 523(a)(8) (1978). Despite this original focus on student loan programs, Congress has consistently expanded § 523(a)(8). The legislative developments are thoroughly explored in Johnson v. Missouri Baptist College (In re Johnson), 218 B.R. 449, 453-54 (8th Cir. BAP 1998), and are also discussed in Renshaw, 222 F.3d at 87-88. In brief, Congress has expanded § 523(a)(8) in the following ways: In 1979, Congress effectively equalized the treatment of loans administered by for-profit educational institutions and non-profit educational institutions by amending the language of the provision; under the original version, only loans administered by non-profit educational institutions were covered. See Bankruptcy Act — Student Loan Debts, Pub. L. No. 96-56, § 3(1), 93 Stat. 387 (1979). Also, deferment periods were excluded from the calculation of the repayment period. See id. § 3(2). In 1984, Congress amended the language to include educational loans from “nonprofit institutions” rather than only “nonprofit institutions of higher education.” See Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, § 454(a)(2), 98 Stat. 333, 375-76. In 1990, Congress expanded the exception to cover educational benefit" }, { "docid": "19073145", "title": "", "text": "provoked special public attention and animus. One story repeatedly referred to in the legislative history involved a lawyer who, along with his wife, sought to discharge some $18,000 in joint student loans upon graduating. At the time of their filing, the husband was employed with a legal aid bureau and his wife was a state employee. The parties’ filing and discharge headlined local papers and occasioned much criticism, including the withdrawal of contributions to the legal aid bureau. The husband was subsequently indicted for bankruptcy fraud. Letter from Student Loan Guarantee Foundation of Arkansas to M. Adams (October 15, 1975). . \"Section 523(a) of title 11 of the United States Code is amended— (2) by striking out 'of higher education’ in paragraph 8.” Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, § 454(a)(2), 98 Stat. 375-76. . “Section 523(a)(8) of title 11, United States Code, is amended— (2) by amending subparagraph (A) to read as follows: '(A) such loan, benefit, scholarship, or stipend overpayment first became due more than 7 years (exclusive of any applicable suspension of the repayment period) before the date of the filing of the petition....'\" Federal Debt Collection Procedures Act of 1990, Pub.L. No. 101-647, § 3621, 104 Stat. 4964-65 (emphasis added). .\"Section 1328(a)(2) of title 11, United States Code, is amended by striking 'section 523(a)(5)’ and inserting 'paragraph (5) or (8) of section 523(a).’ \" Student Loan Default Prevention Initiative Act of 1990, Pub.L. No. 101-508, § 3007(b), 104 Stat. 1388-28 (emphasis added). . One justification for the nondischargeability of student loans focuses on the special status of student borrowers. Since they lack the normal indicia of creditworthiness — income and collateral — most students would not even qualify for a loan. \"[E]ducational loans are different from most loans. They are made without business considerations, without security, without cosigners, and relying for repayment solely on the debtor’s future increased income resulting from the education.\" H.R.Rep. No. 95-595, at 133 (1978), reprinted in 1978 U.S.C.C.A.N. 5963, 6094. At least one commentator has argued for limitations on the dischargeability of student loans because students," }, { "docid": "17544402", "title": "", "text": "523(a)(8), 92 Stat. 2549, 2591 (1978), codified at 11 U.S.C. § 523(a)(8). In 1990, Congress lengthened from five to seven years the period beyond which government-assisted student loans became automatically dischargeable. Pub.L. No. 101-647, § 3621, 104 Stat. 4789, 4964-65 (1990), amending 11 U.S.C. § 523(a)(8)(A). Then, in the Higher Education Amendments of 1998, Congress eliminated this time limitation, making “undue hardship” the only exception to non-dischargeability. Pub.L. No. 105-244, § 971(a), 112 Stat. 1581, 1837 (1998). We apply a totality-of-the-circumstances test in determining undue hardship under § 523(a)(8). Reviewing courts must consider the debtor’s past, present, and reasonably reliable future financial resources, the debtor’s reasonable and necessary living expenses, and “any other relevant facts and circumstances.” Long, 322 F.3d at 554. The debtor has the burden of proving undue hardship by a preponderance of the evidence. The burden is rigorous. “Simply put, if the debt- or’s reasonable future financial resources will sufficiently cover payment of the student loan debt — while still allowing for a minimal standard of living — then the debt should not be discharged.” Id. at 554-55. Undue hardship “is a question of law, which we review de novo. Subsidiary findings of fact on which the legal conclusion is based are reviewed for clear error.” In re Reynolds, 425 F.3d 526, 531 (8th Cir.2005). II. When this case was tried in February 2007, Jesperson was forty-three years old, in good health, and unmarried, with two sons from different relationships living with their mothers. He began college in 1983, attended three schools over the next eleven years, and graduated from the University of Minnesota-Duluth in 1994. He began law school in 1996, changed schools in 1997, completed his legal education in 2000, and passed the bar on his first attempt in February 2002. At the time of trial, he owed ECMC $304,463.62 in principal, interest, and collection costs on eighteen student loans, and he owed Arrow Financial Services $58,755.26 on seven other student loans. He has never repaid any part of any loan. The bankruptcy court found that Jesper-son’s “record of work experience is besmirched by a" }, { "docid": "12573575", "title": "", "text": "Pelkowski, 990 F.2d 737, 742 (3d Cir.1993). The Debtors, however, do not assert the applicability of either exception in this proceeding. . The bankruptcy court elected not to determine the dischargeability of the debt as to Dr. Segal because its determination that the Santa Fe loan did not represent an educational debt within the meaning of section 523(a)(8) proved to be dispos-itive. Appellees argue that the circumstances of this case, i.e., the nature of the loan and the timing of Dr. Segal’s co-execution, distinguish it from Pelkowski and that a remand for further argument on the issue of dischargeability with respect to Dr. Segal as co-obligor would be proper in the event we decide section 523(a)(8) does not apply to the loan. Because we will affirm the district court’s determination that the loan is dischargeable under section 523(a)(8), this issue is moot. . The effective date of these amendments was 180 days from November 29, 1990, the date of enactment. Crime Control Act of 1990, Pub.L. No. 101-647, §§ 3621, 3631, 104 Stat. 4789, 4964-4965, 4966 (1990). Because this case was filed in April 1992, the amendments are applicable. . This case does not involve loan consolidations, which courts routinely have viewed as “educational loans,” within the meaning of 11 U.S.C. § 523(a)(8). There is even a federal statute permitting such educational loan consolidations. See 20 U.S.C. § 1078-3. Several courts have determined that consolidation loans meet the § 523(a)(8) definition and that the date of the consolidation loan starts the running of the seven-year limit of § 523(a)(8)(A). See Hiatt v. Indiana State Student Assistance Comm’n, 36 F.3d 21, 25 (7th Cir.1994) (\"We conclude that, in cases in which a debtor has consolidated her educational loans pursuant to 20 U.S.C. § 1078-3, the plain language of section 523(a)(8)(A) requires that the nondischargeability period commences on the date on which the consolidation loan first became due.”), cert. denied, — U.S. -, 115 S.Ct. 1109, 130 L.Ed.2d 1074 (1995); Martin v. Great Lakes Higher Educ. Corp., 137 B.R. 770, 772 (Bankr.W.D.Mo.1992) (\"|T]he court finds the consolidation loan is an educational loan" }, { "docid": "19073131", "title": "", "text": "the scope of 11 U.S.C. § 523(a)(8) by deleting language limiting dischargeability protections to loans issued by nonprofit institutions of higher education. Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, § 454(a)(2), 98 Stat. 375. 1990 Amendments In 1990, Congress expanded the period of repayment from five to seven years. Federal Debt Collection Procedures Act of 1990, Pub.L. No. 101-647, § 3621(2), 104 Stat. 4933. Finally, the Student Loan Default Prevention Initiative Act of 1990 applied § 523(a)(8) to Chapter 13 cases. The Debate Continues In 1994, Congress again created a commission to review bankruptcy laws. In its October 20, 1997 report, the National Bankruptcy Review Commission recommended to Congress that the exception to discharge for student loans be eliminated: The Commission recommends that Congress eliminate section 523(a)(8) so that most student loans are treated like all other unsecured debts. In so doing, the dischargeability provisions would be consistent with federal policy to encourage educational endeavors. The Recommendation would also address the numerous application problems that have resulted from the current nondisehargeability provision. No longer would Chapter 13 debtors who made diligent efforts to repay be penalized after completing a plan with thousands and thousands in compounded back due interest. Litigation over “undue hardship” would be eliminated, so that the discharge of student loans no longer would be denied to those who need it most. Report of the National Bankruptcy Review Commission, § 1.4.5 (October 20, 1997). Judicial Interpretations of the Word “Loan” One of the most oft-cited definitions of “loan” can be found in the Second Circuit’s opinion in In re Grand Union Co., 219 F. 353 (2d Cir.1914). In In re Grand Union Co., the Second Circuit defined a loan as: [A] contract by which one delivers a sum of money to another and the latter agrees to return at a future time a sum equivalent to that which he borrows. ‘In order to constitute a loan there must be a contract whereby, in substance one party transfers to the other a sum of money which that other agrees to repay absolutely, together with such" }, { "docid": "15572954", "title": "", "text": "currently-named Stafford Loan program), which provide federal funds for low-interest loans to students to attend eligible institutions of higher education. Under the programs, the federal government insures or guarantees lenders and guarantors that the government will repay student loans in the event of a borrower’s default. Collier, supra, ¶ 523.14[1]. Without this guarantee, Congress feared “most lenders would otherwise refuse to fund a student’s pursuit of higher education.” Seth J. Gerson, Separate Classification of Student Loans in Chapter 13, 73 Wash. U.L.Q. 269, 280 (1995) (providing a thorough history of student loan debts in bankruptcy). Over time, Congress looked increasingly with disfavor on the discharge of student loans in bankruptcy and has progressively foreclosed its availability. The presumption of non-dischargeability of student loans reflects the view that student loans are “enabling loans” allowing individuals to improve their own human capital and increase their income potential, but the fruits of the student loans (i.e., the education) cannot be “seiz[ed], garnish[ed], or repossess[ed]” in case of default. Kevin C. Driscoll Jr., Eradicating the “Discharge by Declaration” for Student Loan Debt in Chapter 13, 2000 U. Ill. L.Rev. 1311, 1315-16 (2000). Limitations on the discharge ability of student loans serve two purposes: (1) “preventing abuses of the educational loan system by restricting the ability to discharge a student loan shortly after a student’s graduation,” and (2) “safeguarding the financial integrity of governmental entities and nonprofit institutions that participate in educational loan programs.” Collier, supra, ¶ 523.14[1]; see also Educ. Credit Mgmt. Corp. v. Polleys, 356 F.3d 1302, 1306 (10th Cir.2004). Since before 1978, when the then-governing Bankruptcy Act permitted student loans to be discharged, the requirements for student loan discharge have become progressively more restrictive. In 1978, Congress enacted the Bankruptcy Code making student loans nondischarge able in Chapter 7 cases for the first five-years of repayment unless it would constitute an “undue hardship.” Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, § 523(a)(8), 92 Stat. 2549, 2591 (1978). In 1990, the waiting period was extended to seven years. Federal Debt Collection Procedures Act of 1990, Pub.L. No. 101-647, § 3621(2), 104 Stat." } ]

[ { "docid": "7998666", "title": "", "text": "ORDER Mohammed Riad Altawil (“Petitioner”) moves this court (1) to reconsider its order, filed December 12, 1997, striking the Petitioner’s Supplemental Excerpt of Record (“Supplemental Excerpt”), or in the alternative (2) for Leave to Adduce Additional Evidence and to Remand to the Board of Immigration Appeals (the “Board”). The Immigration and Naturalization Service (“Respondent”) has requested the court to consider Petitioner’s motion to be a request, pursuant to Rule 16(b) of the Federal Rules of Appellate Procedure, to supply an omission from the record. Respondent has stipulated to the addition of the transcript to the administrative record. Respondent opposes the motion as to all other documents included in the Excerpt of Record. In light of this stipulation, we deem Petitioner’s motion to be a request to supply an omission from the record pursuant to Rule 16(b). We hereby grant that request, solely as to the hearing transcript, and will consider the hearing transcript to be a supplemental record for purposes of the petition. Under 8 U.S.C. § 1105a(a)(4), the petition must “be determined solely upon the administrative record upon which the deportation order is based.” (emphasis added). The documents contained in the Supplemental Excerpt were not part of the administrative record upon which Petitioner’s deportation order was based. We therefore deny his motion to reconsider the motion panel’s order. Petitioner moves this court, alternatively, for leave to adduce additional evidence and requests a remand to the Board. This request is premised upon out-of-circuit ' authority applying 28 U.S.C. § 2347(c). Under Section 309(c)(4)(B) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, in the case of an alien in deportation proceedings in which a final order of deportation was entered on or after October 31, 1996, “a court may not order the taking of additional evidence under section 2347(c) of title 28, United States Code.” Pub.L. 104-208, Division C, Title III § 309(c)(4)(B), 110 Stat. 3009. The final order of deportation in Petitioner’s case was issued after October 31, 1996. We therefore deny Petitioner’s request for leave to adduce additional evidence and remand to the Board because we" } ]

[ { "docid": "22707797", "title": "", "text": "is that Felicitas and her family not only could, but did, relocate successfully within the Philip.pines. Petitioners do not challenge the IJ’s alternate ground for denial on review. That alternate ground for denial is supported by substantial evidence. E. Withholding of Deportation The standard for withholding of deportation is more stringent than the standard for asylum. Because Petitioners do not satisfy the standard for asylum, they necessarily fail to satisfy the standard for withholding of deportation. Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). F. Suspension of DepoHation The Attorney General has discretion to grant an alien’s application for suspension of deportation if the alien satisfies the “continuous physical presence,” “good moral character,” and “extreme hardship” requirements of 8 U.S.C. § 1229(b). Here, the IJ denied Petitioners’ request for suspension of deportation on the ground that they had not satisfied the requirement of “extreme hardship.” Because Petitioners’ cases commenced before April 1, 1997, and the final order of deportation was entered on May 26, 1999, their requests for suspension of deportation are governed by the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996). Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). Section 309(c)(4)(E) of the IIRIRA, which is part of the transitional rules, states that “there shall be no appeal of any discretionary decision under ... section 244 of the Immigration and Nationality Act.” That provision “operatefs] to remove direct judicial review of BIA determinations of ‘extreme hardship.’ ” Kalaw, 133 F.3d at 1152. Accordingly, we lack jurisdiction to review the IJ’s finding that Petitioners would not suffer extreme hardship if returned to the Philippines. G.Voluntary Departure Although it ordered deportation, the BIA granted Petitioners the opportunity for voluntary departure. Respondent does not challenge that ruling, so it will remain in effect. CONCLUSION The findings that we have jurisdiction to review are supported by substantial evidence. However, we do not have jurisdiction to review the decision regarding suspension of deportation. Therefore, the petition for review is DENIED in part and DISMISSED in part." }, { "docid": "15821622", "title": "", "text": "this offense, Cardenas had been accorded first time offender treatment under any law. If he has not, then he is not deportable as charged in the order to show cause. If he has, then his conviction under Arizona law qualifies as a deportable offense. Finally, we note that IIRIRA § 309(c)(4)(B)’s bar on ordering the taking of additional information under 28 U.S.C. § 2347 is not relevant here. Section 2347 concerns a party’s appeal to our court to adduce additional evidence, for example, where new evidence about a well-founded fear of persecution is discovered. See Ghaly v. INS, 58 F.3d 1425, 1431-32 (9th Cir.1995) (declining to consider N.Y. Times article and evidence that petitioner qualifies for suspension of deportation); Ramirez-Gonzalez v. INS, 695 F.2d 1208, 1213 n. 2 (9th Cir.1983) (declining to consider Amnesty International Report, U.S. State Department Advisory, and periodical articles concerning political turmoil in Guatemala). Cf. Altawil v. INS, 179 F.3d 791, 792 (9th Cir.1999) (relying on section 309(e)(4)(B) to deny petitioner’s request to adduce additional evidence). Here, the additional evidence is necessary to the determination of our subject matter jurisdiction. It does not fall under the prohibition of section 309(c)(4)(B). REVERSED and REMANDED WITH INSTRUCTIONS to the BIA to proceed in a manner consistent with this opinion. . Section 309(c)(4)(G) is part of IIRIRA's transitional rules. It applies here because Cardenas was placed into deportation proceedings prior to April 1, 1997, and a final order of deportation was entered after October 30, 1996. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). . Cardenas also argues that he was initially charged with possession of cocaine and marijuana and that he pled guilty to possession of drug paraphernalia as a lesser offense. He claims that the drug paraphernalia correlated with the marijuana and in fact he was found with less than 30 grams of marijuana. He argues that under the statute, therefore, he fits into the exception in section 241(a)(2)(B)(i) for personal use. Generally, however, we do not look at the facts underlying the conviction; rather, we examine the actual law under which a defendant was" }, { "docid": "22873029", "title": "", "text": "immigrants two bites at the apple, two opportunities to present their facts. Attorney General Speech (emphasis added). Because of this concern, and the Attorney General’s recognition of the enormous delay by the BIA in processing immigration appeals, the Attorney General promulgated new regulations effective September 25, 2002, which are designed to streamline administrative appellate review, including a provision that, with certain exceptions, generally prohibits the introduction and consideration of new evidence in proceedings before the BIA. See Procedural Reforms, 67 Fed.Reg. at 7311-12, 7315. The BIA also substantially has revised its procedures regarding motions to reopen. The current regulations -are quite different from, and much more elaborate than, those in place at the time of the appeal to the BIA in this case. See 8 C.F.R. § 3.2 (2002). However, neither the substantive nor procedural changes are applicable to this case. Deportation proceedings were initiated against Ramirez-Alejandre on May 4, 1990. The BIA issued its decision on June 6, 2000. Therefore, this case is governed by the transitional rules of IIRIRA. Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). Accordingly, Ramirez-Alejandre remains eligible for suspension of deportation under pre-IIRIRA law and the new remedy of cancellation of removal is not applicable. Because the new procedural regulations were promulgated after the BIA issued the instant decision in this case, they also are not relevant to the issues presented in this case. IIRIRA altered our review of the BIA decisions in suspension of deportation cases. “Under the transitional rules, we lack jurisdiction to review the discretionary determination whether an alien seeking suspension of deportation ... has met the statutory eligibility requirement of ‘extreme hardship.’ ” Sanchez-Cruz v. INS, 255 F.3d 775, 778-79 (9th Cir.2001) (citing Kalaw, 133 F.3d at 1152); see also IIRIRA § 309(c)(4)(E). We also lack jurisdiction to review the Attorney General’s discretionary decision whether to grant suspension once eligibility is determined. Sanchez-Cruz, 255 F.3d at 779; Kalaw, 133 F.3d at 1152. IIRIRA also precluded appellate courts from remanding cases to the BIA for the taking of additional evidence under 28 U.S.G. § 2347(c). Altawil v. INS, 179 F.3d" }, { "docid": "22178271", "title": "", "text": "but I don’t think to the point where that is acceptable by a reasonable person. In any event, I’m not here to legislate. I find extreme hardship has not been established statutorily by respondent and therefore I must deny the application on statutory grounds. (emphasis added). The IJ continued her decision by finding that: [b]ecause of the various relationships now that respondent appears to enjoy, a wife, a companion who chauffeurs him around, a child who apparently, he says adores him, not out of the union of the marriage, the alcohol-related convictions, all are significant factors to consider in the discretionary arena and I would deny the application for suspension as a matter of discretion. On appeal, Reyes-Melendez alleged that the IJ erred by failing to consider all relevant hardship factors enumerated in Matter of Anderson, 16 I. & N. Dec. 596 (BIA 1978). On February 26, 2002, the BIA affirmed the IJ decision, determining that the IJ considered all relevant factors and that Reyes-Melendez failed to establish statutory eligibility. The BIA declined to reach the IJ’s discretionary determination in light of this finding. II Under the Immigration Reform and Illegal Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996), deportation proceedings initiated prior to April 1,1997, for which a final order of deportation is issued after October 30, 1996, are subject to the “transitional rules of judicial review.” Kalaw v. INS, 133 F.3d 1147, 1150-51 (9th Cir.1997); IIRIRA § 309(c)(4). Because deportation proceedings were initiated against Reyes-Melendez on December 30, 1996 and a final order of deportation was issued on February 26, 2002, the transitional rules apply. “Under the transitional rules, we lack jurisdiction to review the discretionary determination whether an alien seeking suspension of deportation ... has met the statutory eligibility requirement of ‘extreme hardship.’ ” Sanchez-Cruz v. INS, 255 F.3d 775, 778 (9th Cir.2001) (citing Kalaw, 133 F.3d at 1152); see also IIRIRA § 309(c)(4)(E). We also lack jurisdiction to review the Attorney General’s discretionary decision whether to grant suspension once eligibility is determined. Sanchez-Cruz, 255 F.3d at 779; Kalaw, 133" }, { "docid": "15821621", "title": "", "text": "first prong of the Manrique test. 2. First Offender Treatment Under Any Law For Cardenas to qualify under the Federal First Offender Act, he cannot have been accorded first offender treatment under any law. The Arizona statute under which Cardenas’s conviction was expunged, Ariz.Rev.Stat. § 13-907, does not limit expungements under the statute to first time offenders.. It does, however, provide that convictions under the statute may be used as a conviction “in any subsequent prosecution of such person by the state or any of its subdivisions for any offense.... ” Id. Because Cardenas’s presentence report does not list any prior convictions, we can be sure that Cardenas had no other conviction that was expunged under this Arizona statute. We cannot be sure, however, that Cardenas was never convicted of an offense relating to controlled substances that was expunged in another state. It is possible that another state’s law allows expungement of convictions such that they would not appear in the pre-sentence report. We must therefore remand to the BIA to determine whether, prior to this offense, Cardenas had been accorded first time offender treatment under any law. If he has not, then he is not deportable as charged in the order to show cause. If he has, then his conviction under Arizona law qualifies as a deportable offense. Finally, we note that IIRIRA § 309(c)(4)(B)’s bar on ordering the taking of additional information under 28 U.S.C. § 2347 is not relevant here. Section 2347 concerns a party’s appeal to our court to adduce additional evidence, for example, where new evidence about a well-founded fear of persecution is discovered. See Ghaly v. INS, 58 F.3d 1425, 1431-32 (9th Cir.1995) (declining to consider N.Y. Times article and evidence that petitioner qualifies for suspension of deportation); Ramirez-Gonzalez v. INS, 695 F.2d 1208, 1213 n. 2 (9th Cir.1983) (declining to consider Amnesty International Report, U.S. State Department Advisory, and periodical articles concerning political turmoil in Guatemala). Cf. Altawil v. INS, 179 F.3d 791, 792 (9th Cir.1999) (relying on section 309(e)(4)(B) to deny petitioner’s request to adduce additional evidence). Here, the additional evidence is" }, { "docid": "15996341", "title": "", "text": "791, 792-93 (9th Cir.1999) (denying transitional alien’s request for leave to adduce additional evidence and to remand to the Board thereon since IIRIRA § 309(c)(4)(B) precludes the reviewing court from “ordering] the taking of additional evidence by the Board under 28 U.S.C. 2347(c)”). Section 2347(c) pertains to an application in the court of appeals “for leave to adduce additional evidence” that “is material” and for which “there were reasonable grounds for failure to adduce the evidence before the agency.” 28 U.S.C. § 2347(c) (1994). Thus, IIRI-RA’s prohibition of remanding for the consideration of “additional evidence” pertains to non-record evidence that is introduced in the first instance before a reviewing-court. See Cardenas-Uriarte v. INS, 227 F.3d 1132, 1138 (9th Cir.2000) (“Section 2347 concerns a party’s appeal to [this] court [asking permission] to adduce addi-. tional evidence, for example, where new evidence about a well-founded fear of persecution is discovered.”). This court has not yet examined how § 1105a(a)(4) and § 2347(c) function in cases in which IIRIRA § 309(c)(4)(B) applies. Thus, we have surveyed the landscape of decisions granting judicial notice in immigration cases. In an en banc decision, the Ninth Circuit reasoned that § 1105a(a)(4) permits a court of appeals to “review out-of-record evidence only where (1) the Board considers the evidence; or (2) the Board abuses its discretion by failing to consider such evidence upon the motion of an applicant.” Fisher v. INS, 79 F.3d 955, 964 (9th Cir.1996). Based on this rule, Fisher refused to notice State Department Country Reports that could have been, but were not, offered below. See id. at 964. In later decisions, the Ninth Circuit retreated from Fisher. See, e.g., Rising v. INS, 124 F.3d 996, 998-99 (9th Cir.1997) (taking judicial notice of official INS forms not contained in the administrative record); Gafoor v. INS, 231 F.3d 645, 655-56 (9th Cir.2000) (taking judicial notice of dramatic developments in the proposed country of deportation arising between the BIA’s decision and appellate review). But see Hernandez v. INS, 229 F.3d 1157 (table), 2000 WL 831811, *1 (9th Cir.2000) (unpublished mem.) (denying alien’s request to file sup" }, { "docid": "23367752", "title": "", "text": "to similarly situated criminal excludable aliens. In Magana-Pizano, we held that IIRI-RA section 309(c)(4)(G) divested us of jurisdiction to review on direct appeal claims of statutory violations raised by aliens who — similar to Petitioners — are deporta-ble because of having been convicted of certain drug offenses. 200 F.3d at 607. Accordingly, we do not consider statutory claims here. In Maganctr-Pizano, however, we did not address the question whether we retain jurisdiction to consider on direct appeal claims of constitutional violations raised by these same categories of criminal aliens. Accordingly, before considering Petitioners’ equal protection claims, we must decide whether we have jurisdiction to do so. Petitioners argue that Congress may not, consistent with due process, eliminate their ability to seek review of constitutional violations on direct appeal. For the reasons described below, we disagree. STANDARD OF REVIEW The existence of subject matter jurisdiction is a question of law reviewed de novo. See Milne v. Hillblom, 165 F.3d 733, 735 (9th Cir.1999). DISCUSSION In 1996, Congress enacted both AEDPA and IIRIRA into law. Before the enactment of either of these statutes, there was direct federal judicial review of deportation orders. See 8 U.S.C. § 1105a (1994), repealed by IIRIRA, Pub.L. 104-208, § 306(b), 110 Stat. 3009-612 (1996). Under the same provision, deportable aliens could seek review of their deportation orders by filing petitions for a writ of habeas corpus. IIRIRA changed the judicial review structure through its permanent and transitional rules. IIRIRA’s permanent rules do not apply to deportation cases that were pending before April 1, 1997, the effective date of IIRIRA’s amendments; instead, the transitional rules, found in IIRIRA section 309(c), apply to BIA final orders issued after October 30, 1996 in deportation cases that were pending before April 1, 1997. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997); Magana-Pizano, 200 F.3d at 607. Because the BIA issued Petitioners’ final orders of deportation after October 30, 1996, and Petitioners’ deportation proceedings all began before April 1, 1997, IIRIRA’s transitional rules apply to Petitioners’ cases. Turning to the transitional rules, IIRI-RA section 309(c)(4)(G) provides: [TJhere shall be no" }, { "docid": "15996340", "title": "", "text": "2347); Osaghae, 942 F.2d at 1161-62; Makonnen v. INS, 44 F.3d 1378, 1384-86 (8th Cir.1995); Becerra-Jimenez v. INS, 829 F.2d 996, 1000-02 (10th Cir.1987); Bernal-Garcia v. INS, 852 F.2d 144, 147 (5th Cir.1988); Dolores v. INS, 772 F.2d 223, 226-27 (6th Cir.1985) (per curiam); Coriolan v. INS, 559 F.2d 993, 1002-04 (5th Cir.1977) (taking judicial notice of non-record Amnesty International report to find that the report established dramatic changes in country conditions which merited reversal and remand under § 2347(c) for further consideration of the alien’s asylum claim). But see Ramirez-Gonzalez v. INS, 695 F.2d 1208, 1213-14 (9th Cir.1983) (holding that it is improper to apply § 2347(e) where an asylum applicant presents new evidence for the first time on appeal, because remanding under § 2347(c) amounts to an order to reopen, and a court should not generally compel the INS to reopen proceedings). In transitional cases, however, IIR-IRA § 309(c)(4)(B) directs that “a court may not order the taking of additional evidence under section 2347(c) of title 28.” See Altawil v. INS, 179 F.3d 791, 792-93 (9th Cir.1999) (denying transitional alien’s request for leave to adduce additional evidence and to remand to the Board thereon since IIRIRA § 309(c)(4)(B) precludes the reviewing court from “ordering] the taking of additional evidence by the Board under 28 U.S.C. 2347(c)”). Section 2347(c) pertains to an application in the court of appeals “for leave to adduce additional evidence” that “is material” and for which “there were reasonable grounds for failure to adduce the evidence before the agency.” 28 U.S.C. § 2347(c) (1994). Thus, IIRI-RA’s prohibition of remanding for the consideration of “additional evidence” pertains to non-record evidence that is introduced in the first instance before a reviewing-court. See Cardenas-Uriarte v. INS, 227 F.3d 1132, 1138 (9th Cir.2000) (“Section 2347 concerns a party’s appeal to [this] court [asking permission] to adduce addi-. tional evidence, for example, where new evidence about a well-founded fear of persecution is discovered.”). This court has not yet examined how § 1105a(a)(4) and § 2347(c) function in cases in which IIRIRA § 309(c)(4)(B) applies. Thus, we have surveyed the landscape" }, { "docid": "22262488", "title": "", "text": "Popo-va and her daughter did not qualify for benefits under NACARA because they did not enter the country on or before December 31,1990. II. A. Standard of Review Because Popova’s deportation proceedings were pending before April 1, 1997, and she received her final order of deportation from the BIA after October 30, 1996, IIRIRA’s transitional rules apply. Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). Accordingly, this Court has jurisdiction to review the BIA’s final order under Section 106(a) of the INA, 8 U.S.C. § 1105a(a) (1994), as modified by Section 309(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. 104-208, 110 Stat. 3009 (1996). This Court’s review is “limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.” Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir.1998) (citing Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995)). Legal determinations made by the BIA are reviewed de novo. Hartooni v. INS, 21 F.3d 336, 340 (9th Cir.1994). Factual determinations by the BIA are reviewed under the substantial evidence standard. Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998). Substantial evidence can be found lacking only if the applicant shows that the evidence which she presented “was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995). Decisions by the BIA to deny a Motion to Remand are reviewed using the abuse of discretion standard, regardless of the basis of the applicant’s request for relief. Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir.1999) (citing INS v. Doherty, 502 U.S. 314, 324, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). B. Popova is eligible for a discretionary grant of asylum from the Attorney General. Popova is eligible for a discretionary grant of asylum from the Attorney General if she is a “refugee,” as defined by section 101(a)(42)(A) of the Immigration Nationality Act (“INA”), 8 U.S.C. § 1101(a)(42)(A). Ernesto Navas v. INS," }, { "docid": "15821623", "title": "", "text": "necessary to the determination of our subject matter jurisdiction. It does not fall under the prohibition of section 309(c)(4)(B). REVERSED and REMANDED WITH INSTRUCTIONS to the BIA to proceed in a manner consistent with this opinion. . Section 309(c)(4)(G) is part of IIRIRA's transitional rules. It applies here because Cardenas was placed into deportation proceedings prior to April 1, 1997, and a final order of deportation was entered after October 30, 1996. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). . Cardenas also argues that he was initially charged with possession of cocaine and marijuana and that he pled guilty to possession of drug paraphernalia as a lesser offense. He claims that the drug paraphernalia correlated with the marijuana and in fact he was found with less than 30 grams of marijuana. He argues that under the statute, therefore, he fits into the exception in section 241(a)(2)(B)(i) for personal use. Generally, however, we do not look at the facts underlying the conviction; rather, we examine the actual law under which a defendant was convicted to determine whether the law relates to controlled substances. See Coronado-Durazo v. INS, 123 F.3d 1322, 1325 (9th Cir.1997); see also Maghsoudi v. INS, 181 F.3d 8, 14 (1st Cir.1999) (“The inherent nature of the crime of conviction, as defined in the criminal statute, is relevant in this determination; the particular circumstances of [the respondent's] acts and convictions are not.’’). . We address the issue of expungement under Manrique even though it appears to have been waived by Cardenas, as it relates to our subject matter jurisdiction. See, e.g., Owen Equip. and Erection Co. v. Kroger, 437 U.S. 365, 377 n. 21, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978) (subject matter jurisdiction cannot be waived); DeSaracho v. Custom Food Machinery, Inc., 206 F.3d 874, 878 n. 4 (9th Cir.2000). . In Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.2000), we held that if an alien would have qualified for first offender treatment under federal law prior to the 1996 amendments to the immigration laws, he can still qualify for first offender treatment after the" }, { "docid": "22647674", "title": "", "text": "8 U.S.C. § 1105(a) (repealed 1996). In 1996, Congress passed IIRIRA, which substantially restricted the scope of judicial review. Of importance to this case, section 309(c)(4)(E) of IIRIRA, which governs requests for suspension of deportation made pursuant to section 244 of the INA, provides that “there shall be no appeal of any discretionary decision under ... section 244 of the Immigration and Nationality Act.” Section 309(c)(4)(E) is part of the transitional rules of IIRIRA that apply to cases commenced before April 1, 1997, in which a final order of deportation was filed after October 30,1996. See IIRIRA § 309(c)(1); see also Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997) (“As to cases in which a final deportation or exclusion order was filed after October 30, 1996, and which were pending before April 1, 1997, IIRIRA’s transitional rules apply.”). The INS commenced deportation proceedings against Castillo in 1994. The BIA entered a final order of deportation in 1997. The case is, therefore, governed by the transitional rules of IIRIRA. We hold, however, that section 309(c)(4)(E) of IIRIRA does not bar this court from exercising, jurisdiction over Castillo’s claim, as neither the BIA nor the IJ made a discretionary decision “under ... section 244 of the Immigration and Nationality Act.” IIRIRA § 309(c)(4)(E). It is uncontroverted that the Attorney General’s decisions on section 244 motions to suspend deportation are wholly discretionary and not appealable. In Kalaw, we held that because the ultimate grant of suspension of deportation by the Attorney General is wholly discretionary, “under IIRIRA’s transitional rules, there is no direct judicial review of the Attorney General’s ultimate decision not to suspend deportation proceedings.” Kalaw, 133 F.3d at 1152. A BIA decision to deny suspension of deportation, however, is still subject to review under some circumstances. In Kalaiv, we held that as to “those elements of statutory eligibility [for section 244 suspension of deportation] which do not involve the exercise of discretion, direct judicial review remains.” Id. at 1150. Kalaw then analyzed the three statutory requirements found in INA § 244(a)(1), 8 U.S.C. § 1254(a)(1) (1994) — (1) seven years" }, { "docid": "22647673", "title": "", "text": "based on the BIA’s dismissal of his motion to remand (not the motion to reopen), and because we conclude that, in light of the violation of Castillo’s constitutional rights that occurred at his hearing, due process requires that he be afforded the benefit of the law that was applicable at the time of that hearing, we decline to exercise our discretion to consider the BIA’s holding that NACARA’s timing rale is triggered by an order to show cause and should generally apply retroactively. STANDARD OF REVIEW The BIA’s denial of a motion to remand is reviewed for abuse of discretion. See Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir.1999). Claims of due process violations in deportation proceedings are reviewed de novo, see Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996), as are the BIA’s determination of purely legal questions. See, e.g., Ratnam v. INS, 154 F.3d 990, 994 (9th Cir.1998). ANALYSIS I. Jurisdiction Prior to the passage of IIRIRA, most orders of deportation were subject to direct judicial review. See INA § 106(a), 8 U.S.C. § 1105(a) (repealed 1996). In 1996, Congress passed IIRIRA, which substantially restricted the scope of judicial review. Of importance to this case, section 309(c)(4)(E) of IIRIRA, which governs requests for suspension of deportation made pursuant to section 244 of the INA, provides that “there shall be no appeal of any discretionary decision under ... section 244 of the Immigration and Nationality Act.” Section 309(c)(4)(E) is part of the transitional rules of IIRIRA that apply to cases commenced before April 1, 1997, in which a final order of deportation was filed after October 30,1996. See IIRIRA § 309(c)(1); see also Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997) (“As to cases in which a final deportation or exclusion order was filed after October 30, 1996, and which were pending before April 1, 1997, IIRIRA’s transitional rules apply.”). The INS commenced deportation proceedings against Castillo in 1994. The BIA entered a final order of deportation in 1997. The case is, therefore, governed by the transitional rules of IIRIRA. We hold, however, that section 309(c)(4)(E)" }, { "docid": "22094505", "title": "", "text": "this Court a timely petition for review of the BIA’s decision. decision holding Magana-Pizano statutorily ineligible for relief was issued March 17, 1997, IIRIRA’s transitional provisions apply to his case. See IIRIRA § 309(c)(4); Kalaw, 133 F.3d at 1150. Magana-Pizano also filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of Arizona. In his habeas petition, he argued that the BIA’s decision and interpretation of AEDPA section 440(d) violated the Equal Protection Clause of the Constitution. The district court dismissed the complaint without prejudice for lack of jurisdiction, explaining that the statutory basis for habeas review for aliens in custody pursuant to an order of deportation was repealed by a different section of AEDPA. See AEDPA § 401(e), repealing 8 U.S.C. § 1105a(a)(10). Magana-Pizano filed a timely appeal, and we sua sponte consolidated both matters. II The Supreme Court’s decision in American-Arab does not alter our analysis of Magana-Pizano’s petition for review of the BIA decision holding that he was ineligible for discretionary relief under INA § 212(c). Magana-Pizano challenged the BIA’s interpretation of AEDPA section 440(d) and its applicability to his case. In Magana-Pizano I, we held that we could not reach the merits of the petition because Congress had repealed our jurisdiction to entertain the petition. We have confirmed this holding in Briseno v. INS, 192 F.3d 1320, 1322 (9th Cir.1999). Immigration proceedings initiated by the INS before IIRIRA’s general effective date of April 1, 1997, in which a final deportation or exclusion order was filed after October 30, 1996, are governed by interim transitional rules. See IIRIRA § 309(c); Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). Because the BIA’s The IIRIRA provision relevant to this appeal, section 309(c)(4)(G), provides: there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in section 212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D) of the Immigration and Nationality Act (as in effect as of the date of the" }, { "docid": "22722376", "title": "", "text": "December 14, 1998, after conducting a de novo review, the BIA affirmed the IJ’s decision and dismissed Sanchez-Cruz’s appeal. One Board member dissented. Sanchez-Cruz timely petitioned for review by this court. For the first time, Sanchez-Cruz argues before this court that the IJ’s bias during her deportation hearing violated her right to due process under the Fifth Amendment. II Under the Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009 (1996), deportation proceedings initiated prior to April 1, 1997, for which a final order of deportation is issued after October 30, 1996, are subject to “transitional rules of judicial review.” Kalaw v. INS, 133 F.3d 1147, 1150-51 (9th Cir. 1997); IIRIRA § 309(c)(4). Because deportation proceedings were initiated against Sanchez-Cruz on December 22, 1993, and because a final order of deportation was issued on December 14, 1998, the transitional rules apply to Sanchez-Cruz’s case. Under the transitional rules, we lack jurisdiction to review the discretionary determination whether an alien seeking suspension of deportation under section 244 has met the statutory eligibility requirement of “extreme hardship.” Kalaw, 133 F.3d at 1152; IIRIRA § 309(c)(4)(E). In addition, we lack jurisdiction over the BIA’s alternative holding that, as a matter of pure discretion, it would deny Sanchez-Cruz her requested relief. As to this second layer of the Attorney General’s discretion, there is no judicial review. “Satisfying the statutory eligibility requirements for consideration of suspension does not mean that the application will automatically be granted.” Kalaw, 133 F.3d at 1152 (citing INS v. Yang, 519 U.S. 26, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996)). In fact, “[t]he BIA need not even address the statutory requirements if the application is denied as a matter of pure discretion.” Id. at 1152 (citing INS v. Rios-Pineda, 471 U.S. 444, 446, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985)). Despite these limitations on our subject matter jurisdiction, we retain review of due process challenges to the BIA’s denial of suspension of deportation. The Fifth Amendment guarantees due process in deportation proceedings. Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999). “[A] BIA decision" }, { "docid": "3797111", "title": "", "text": "discussed above, Socop Gonzalez did not prolong the proceedings. While the decision to reopen proceedings sua sponte is left to the BIA’s discretion, we find it difficult to imagine how this sole unfavorable factor might outweigh the plethora of factors weighing in favor of reopening Socop-Gonzalez’s case. IV Section 3.2(c)(2)’s statute of limitations bars Soeop-Gonzalez’s motion to reopen proceedings against him and the government is not estopped from enforcing the statute of limitations against Socop-Gonza-lez. However, the BIA abused its discretion by failing to consider any factors relevant to the determination whether there is an exceptional situation in which it is- appropriate for the BIA to reopen proceedings on its own motion. Accordingly, we remand to the BIA for further proceedings consistent with this opinion. PETITION GRANTED. REVERSED AND REMANDED. . IIRIRA's transitional rules govern this appeal because deportation proceedings began in Socop-Gonzalez's case before April 1, 1997 (on October 19, 1995) and a final order of deportation was entered after October 30, 1996 (on May 5, 1997). See IIRIRA § 309(c)(1); Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). IIRIRA's transitional rules do not deny this court jurisdiction over a motion to reopen where the deportation order was issued under § 241 of the INA. See Arrozal v. INS, 159 F.3d 429, 432 (9th Cir.1998). . Socop-Gonzalez casts his motion as both a motion to reopen and a motion to reconsider. Properly titled, it is a motion to reopen, not a motion to reconsider, because Socop-Gonza-lez seeks to present new facts not already in evidence. See Hyun Joon Chung v. INS, 720 F.2d 1471, 1474 n. 2 (9th Cir.1983); Ira J. Kurzban, Kurzban’s Immigration Law Source-book 738 (6th ed.1998). Here, Socop-Gonza-lez seeks to present facts pertaining to his eligibility for adjustment of status. This distinction has no impact on the outcome of this appeal because even if it were a motion to reconsider, the BIA properly denied it as untimely. A motion to reconsider \"must be filed with the Board within 30 days after the mailing of the Board decision or on or before July 31, 1996, whichever" }, { "docid": "22652015", "title": "", "text": "Nationality Act (“INA”), 8 U.S.C. § 1251(a)(1)(B) (1994). At Petitioners’ deportation hearing, the Immigration Judge (“IJ”) found them de-portable, denied their petitions for asylum and withholding of deportation, and granted voluntary departure. Petitioners appealed first to the BIA, which affirmed the IJ, and then to this court. We denied their petition on January 12, 1995. Ram v. INS, 46 F.3d 1144 (9th Cir.1995) (unpublished disposition). On November 16, 1994, while their petition to this court was pending, Petitioners moved to reopen their deportation proceedings to apply for suspension of deportation. Petitioners argued that suspension was appropriate because, while they were in deportation proceedings, they attained the seven years of continuous physical presence necessary to qualify for such relief. The BIA denied Petitioners’ motion. On appeal, we reversed and remanded to the BIA for further review of hardship. Ram v. INS, 107 F.3d 17 (9th Cir.1997) (unpublished disposition). On remand, the BIA summarily denied Petitioners’ motion on the sole ground that they had not satisfied IIRIRA’s new stop-time rule. That rule requires aliens to meet the continuous physical presence requirement before their deportation proceedings commence. INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) [hereinafter “INA section 240A(d)(1)” or “the stop-time rule”]. Petitioners now petition for review of the BIA final order, contending that: (1) the stop-time rule does not apply to OSCs where an alien seeks suspension of deportation; (2) the application of the stop-time rule to Petitioners violates due process because it is impermissibly retroactive; (3) IIRIRA section 309(c)(5) violates equal protection because it exempts some aliens from the stop-time rule on the basis of their national origin; and (4) in calculating Petitioners’ period of continuous physical presence, the BIA should have considered time accumulated after service of the OSCs. Because this petition falls under IIRI-RA’s transitional rules, Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), we have jurisdiction pursuant to 8 U.S.C. § 1105a(a), as amended by IIRIRA section 309(c). Avetova-Elisseva v. INS, 213 F.3d 1192, 1195 n. 4 (9th Cir.2000). STATUTORY BACKGROUND Three sets of rules concern us here: (1) the old INA rules, which governed before IIRIRA’s" }, { "docid": "22717047", "title": "", "text": "motion to reopen. The transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by the Extension of Stay in United States for Nurses Act, Pub.L. No. 104-302, 110 Stat. 3656(Oet. 11, 1996), apply to this appeal, since deportation proceedings began in this case before April 1, 1997 (July 3, 1996) and a final order of deportation was entered after October 30,1996 (March 5, 1997). See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997) (stating that deportation and exclusion proceedings 4136 pending before IIRIRA’s April 1, 1997 effective date are governed by special “transitional changes in judicial review” that apply to final orders of deportation or exclusion entered after October 30, 1996). Under § 309(c) of IIRIRA, this Court has jurisdiction to review a BIA decision under pre-IIRIRA § 106(a) of the INA, 8 U.S.C. § 1105a(a), unless a specified exception applies. One of the specified exceptions precludes judicial review of “any discretionary decision under section ... 244 of the [INA]....” IIRIRA § 309(c)(4)(E). Under IIRIRA’s transitional rules, we have jurisdiction to review the BIA’s denial of a motion to reopen when a petitioner is ordered deported under § 241 of the INA. See Arrozal v. INS, 159 F.3d 429, 432 (9th Cir.1998); see also Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir.2001) (en banc). This is true even when a petitioner moves to reopen in order to seek suspension of deportation under INA § 244. Arrozal, 159 F.3d at 432. The review of a motion to reopen in this context is distinct from the direct review of a denial of suspension of deportation, which is precluded when the BIA makes discretionary determinations of the threshold eligibility requirements of “extreme hardship” and “good moral character” under § 244(a). See Kalaw, 133 F.3d at 1152. The initial jurisdictional issue is whether Arrozal applies to permit this court to review the BIA’s order denying petitioners’ motion. In this case, the underlying deportation order consisted of the IJ’s grant of petitioners’ request for voluntary departure in" }, { "docid": "22262487", "title": "", "text": "the IJ’s Order, the BIA concluded that the IJ demonstrated “a reasonable exercise of discretion based upon the record.” The BIA concluded, in relevant part: While we agree with the Immigration Judge that the treatment that [Popova] described is reprehensible, we further agree with the Immigration Judge’s conclusion that the evidence presented by the respondent does not support her claim that the harm was caused “on account of’ her political opinion or her membership in a particular social group. Fatin v. INS, 12 F.3d 1233 (3d Cir.1993)_ We note that the lead respondent was permitted to pursue her medical education (even if outside Bulgaria), was permitted to travel outside Bulgaria on several occasions, and until her departure, the respondent worked as a physician in several government run medical facilities. Accordingly, we find no error in the Immigration Judge’s determination that the respondent failed to demonstrate that a reasonable person in her circumstances would fear persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The BIA additionally concluded that Popo-va and her daughter did not qualify for benefits under NACARA because they did not enter the country on or before December 31,1990. II. A. Standard of Review Because Popova’s deportation proceedings were pending before April 1, 1997, and she received her final order of deportation from the BIA after October 30, 1996, IIRIRA’s transitional rules apply. Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). Accordingly, this Court has jurisdiction to review the BIA’s final order under Section 106(a) of the INA, 8 U.S.C. § 1105a(a) (1994), as modified by Section 309(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. 104-208, 110 Stat. 3009 (1996). This Court’s review is “limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.” Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir.1998) (citing Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995)). Legal determinations made by the BIA are reviewed de novo. Hartooni v. INS, 21 F.3d 336, 340 (9th Cir.1994). Factual determinations by the BIA are" }, { "docid": "22052191", "title": "", "text": "those in place at the time of the appeal to the BIA in this case. See 8 C.F.R. § 3.2 (2002). However, neither the substantive nor procedural changes are applicable to this case. Deportation proceedings were initiated against Ramirez-Alejandre on May 4, 1990. The BIA issued its decision on June 6, 2000. Therefore, this case is governed by the transitional rules of IIRIRA. Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). Accordingly, Ramirez-Alejandre remains eligible for suspension of deportation under pre-IIRIRA law and the new remedy of cancellation of removal is not applicable. Because the new procedural regulations were promulgated after the BIA issued the instant decision in this case, they also are not relevant to the issues presented in this case. IIRIRA altered our review of the BIA decisions in suspension of deportation cases. “Under the transitional rules, we lack jurisdiction to review the discretionary determination whether an alien seeking suspension of deportation ... has met the statutory eligibility requirement of ‘extreme hardship.’ ” Sanchez-Cruz v. INS, 255 F.3d 775, 778-79 (9th Cir.2001) (citing Kalaw, 133 F.3d at 1152); see also IIRIRA § 309(c)(4)(E). We also lack jurisdiction to review the Attorney General’s discretionary decision whether to grant suspension once eligibility is determined. Sanchez-Cruz, 255 F.3d at 779; Kalaw, 133 F.3d at 1152. IIRIRA also precluded appellate courts from remanding cases to the BIA for the taking of additional evidence under 28 U.S.C. § 2347(c). Altawil v. INS, 179 F.3d 791, 793 (9th Cir.1999). Notwithstanding these statutory limitations on judicial review, we retain the power to review constitutional due process challenges to immigration decisions. Sanchez-Cruz, 255 F.3d at 779. This review is de novo. Id. In deciding whether agency procedures comport with due process, we do not defer to the agency. See Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 543, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (noting that administrative agencies have great latitude in crafting rules of procedure only “[a]bsent constitutional constraints”). Now that we have set the historical context, we turn to the specifics of this case. II Ramon Ramirez-Alejandre is forty-four years" }, { "docid": "22178272", "title": "", "text": "the IJ’s discretionary determination in light of this finding. II Under the Immigration Reform and Illegal Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996), deportation proceedings initiated prior to April 1,1997, for which a final order of deportation is issued after October 30, 1996, are subject to the “transitional rules of judicial review.” Kalaw v. INS, 133 F.3d 1147, 1150-51 (9th Cir.1997); IIRIRA § 309(c)(4). Because deportation proceedings were initiated against Reyes-Melendez on December 30, 1996 and a final order of deportation was issued on February 26, 2002, the transitional rules apply. “Under the transitional rules, we lack jurisdiction to review the discretionary determination whether an alien seeking suspension of deportation ... has met the statutory eligibility requirement of ‘extreme hardship.’ ” Sanchez-Cruz v. INS, 255 F.3d 775, 778 (9th Cir.2001) (citing Kalaw, 133 F.3d at 1152); see also IIRIRA § 309(c)(4)(E). We also lack jurisdiction to review the Attorney General’s discretionary decision whether to grant suspension once eligibility is determined. Sanchez-Cruz, 255 F.3d at 779; Kalaw, 133 F.3d at 1152. IIRIRA also precludes appellate courts from remanding cases to the BIA for the taking of additional evidence under 28 U.S.C. § 2347(c). Altawil v. INS, 179 F.3d 791, 793 (9th Cir.1999). Notwithstanding these statutory limitations on judicial review, we retain the power to review constitutional due process challenges to immigration decisions. Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 377 (9th Cir.2003) (en banc). We review de novo due process challenges to final orders of deportation. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We will grant a petition for review from a BIA decision on due process grounds “if the proceeding was ‘so fundamentally unfair that the alien was prevented from reasonably presenting his case.’ ” Colmenar, 210 F.3d at 971 (quoting Platero-Cortez v. INS, 804 F.2d 1127, 1132 (9th Cir.1986)). The alien must also show prejudice, which means that the outcome of the proceeding may have been affected by the alleged violation. Id. Because the BIA had jurisdiction under 8 C.F.R. § 3.1(b)(2), and because Reyes-Melendez filed a timely petition, we" } ]

[ { "docid": "13169897", "title": "", "text": "a period of more than a week. We do not underestimate the importance of requiring timely compliance with pre-trial orders. On the other hand, a trial court should not adhere blindly to the letter of the order “no matter what the reason” for a party’s non-compliance. We note that the magistrate expressly exonerated defendant from any implication of bad faith in failing to “timely” list the witness and found that such failure was not a trial tactic. Cf. De Marines v. KLM Royal Dutch Airlines, 580 F.2d 1192 (3 Cir. 1978). On the premise of the magistrate’s ruling, a party could never obtain a new trial on the ground of post-trial newly discovered evidence either under Rule 59 or under Rule 60(b)(2), FRCP. Granted that “a motion for new trial on the ground of newly discovered evidence is viewed with disfavor” (Edgar v. Finley, 312 F.2d 533, 536 (8 Cir. 1963)), a denial of such a motion is nevertheless reversible if the trial court abused its discretion. In the present case, the new evidence was discovered before the trial commenced, so that the time and expense of a new trial could have been avoided had the evidence been allowed or a con tinuance been granted had plaintiff requested one. As appears supra, we have concluded that under the circumstances of this case, the court abused its discretion in denying defendant’s request to amend its witness list by adding the name of Gerry Ballard and in refusing thereafter to grant defendant a new trial. Reversed and remanded for a new trial. . The Honorable R. E. Longstaff, United States Magistrate of the United States District Court for the Southern District of Iowa. . Initially, plaintiff theorized that the heater’s control valve which was manufactured by Honeywell, Inc. (an original co-defendant) was defective and malfunctioned, causing an improper flow of gas and delayed ignition within the heater. When tests by plaintiff’s experts failed to find such a defect, Honeywell was dropped as a defendant, and the “dust-particle” theory was developed. In the opinion of defendant’s experts the “dust particle” theory was “quite" } ]

[ { "docid": "23016594", "title": "", "text": "denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process. Id. at 864, 108 S.Ct. 2194 (emphasis added). It may be forcefully argued that, when the underlined sentence above is read in the context of the paragraph in which it occurs and of the opinion as a whole, the reader should understand that the sentence is intended to apply in the context of deciding a motion to relieve a party of a civil judgment under Rule 60(b)(6) and that the bracketed words, “under Rule 60(b)(6),” are implicitly included in the sentence. If so, it is evident that underlined sentence merely sets forth some equitable principles that the Court deemed appropriate for consideration in determining whether a § 455(a) violation creates “extraordinary circumstances” warranting the relief of a party from a final civil judgment under Fed.R.Civ.P. 60(b)(6). It is well recognized that a motion for relief from a civil judgment under Rule 60(b) is addressed to the discretion of the court, e.g., Hand v. United States, 441 F.2d 529 (5th Cir.1971)(tax refund case); Simons v. Gorsuch, 715 F.2d 1248 (7th Cir.1983); Clarke v. Burkle, 570 F.2d 824 (8th Cir.1978), and that equitable principles may be taken into account by a court in the exercise of its discretion under Rule 60(b). Bros Inc. v. W.E. Grace Mfg. Co., 320 F.2d 594 (5th Cir.1963); MIF Realty L.P. v. Rochester Assocs., 92 F.3d 752, 756 (8th Cir.1996). In reviewing this court of appeals’ decision in Liljeberg to grant the Rule 60(b)(6) motion to vacate the judgment on the basis of the trial judge’s § 455(a) violation, the Supreme Court used several traditional equitable considerations, as well as the three it had said were appropriate, to determine whether relieving the movant from the final civil judgment under Rule 60(b)(6) was the proper remedy for the trial judge’s violation. Of the equitable factors customarily used by courts in deciding 60(b) motions, the Supreme Court considered whether there had been a timely request for relief, whether a showing of special hardship by reason of reliance on" }, { "docid": "23144380", "title": "", "text": "district court in connection with such a motion will not be reversed on appeal save for abuse. Pioneer Ins. Co. v. Gelt, 558 F.2d 1303, 1312 (8th Cir. 1977; Hale v. Ralston Purina Co., 432 F.2d 156, 159 (8th Cir. 1970); 11 Wright & Miller, Federal Practice & Procedure, § 2857. The authors just cited have said that “motions under Rule 60(b) involve a nice balance between the interest in finality and the desire to achieve justice. . . .” 11 Wright & Miller, § 2872, p. 261. And, several years ago in Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir. 1969), we said that Rule 60(b) “provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances.” The district court characterized the plaintiff’s Rule 60(b) motion, as first amended, as being based on the Rule’s Ground (1), mistake, and Ground (4), voidness of judgment. Plaintiff’s motion, as amended, did not refer in terms to Ground (6) heretofore mentioned. As to the plaintiff’s claim that the judgment was entered and satisfied under a “mistake of law” on the part of plaintiff’s counsel as to the effect or possible effect of the judgment and satisfaction, the district court observed correctly that this court has held consistently that relief from a judgment is not to be granted under Rule 60(b) simply because its entry may have resulted from incompetence or ignorance on the part of an attorney employed by the party seeking relief. Cline v. Hoogland, 518 F.2d 776, 778 (8th Cir. 1975); United States v. Thompson, 438 F.2d 254, 256 (8th Cir. 1971); Hoffman v. Celebrezze, supra. Aside from that, the district court held that relief could not be granted upon Ground (1) of the Rule because the motion was not filed within one year after the entry of the judgment. As to the claim of plaintiff that the judgment in the Burkle case was “void” so that plaintiff would be entitled to relief upon Ground (4), the district judge pointed out that when the judgment was entered the district court had jurisdiction of the" }, { "docid": "9335225", "title": "", "text": "because it demonstrates that Morris could not be trusted to keep Baxter’s proprietary information secret. The district court disagreed and denied Baxter’s Rule 60(b) motion without an evidentia-ry hearing. II. DISCUSSION Rule 60(b) “provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances.” United States v. Young, 806 F.2d 805, 806 (8th Cir.1986) (per curiam), cert. denied, 484 U.S. 836, 108 S.Ct. 117, 98 L.Ed.2d 76 (1987). To prevail on its Rule 60(b)(2) motion, Baxter needed to establish: “(1) the evidence was discovered after trial; (2) [Baxter] exercised due diligence to discover the evidence before the end of the trial; (3) the evidence is material and not merely cumulative or impeaching; and (4) a new trial at which the evidence was introduced would probably produce a different result.” Peterson v. General Motors Corp., 904 F.2d 436, 440 (8th Cir.1990). Motions under Rule 60(b) are within the discretion of the district court and we reverse the district court’s denial of a Rule 60(b) motion only when the court clearly abused its discretion. Id.; Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 515 (8th Cir.) (motions under Rule 60(b) are viewed with disfavor), cert. denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984). Baxter asserts that Morris gave misleading testimony at his deposition to keep Baxter from discovering the MPX Plan and that “[f]or the District Court now to suggest that Baxter erred in accepting the testimony of a sworn witness and for failing to assume guile and intrigue on behalf of Dr. Morris is preposterous.” Appellants’ Brief at 11. The only portion of Morris’ deposition that Baxter cites to support its contention is an exchange regarding Morris’ possible employment opportunities at AVL Scientific Corp. (“AVL”). Baxter alleges that this exchange is a veiled reference to MPX. Morris explained by affidavit in response to Baxter’s allegations that MPX was to be an independent company which would license patent technology from AVL and that he did not consider starting an independent company to be an employment opportunity with AVL. Affidavit of" }, { "docid": "23527532", "title": "", "text": "Cline v. Hoogland, 518 F.2d at 778. Rule 60(d) provides for extraordinary relief on a showing of exceptional circumstances. While it may operate indirectly to allow appellate review of a decision not timely appealed, it is not a substitute for appeal. Horace v. St. Louis Southwestern Railroad, 489 F.2d 632, 633 (8th Cir.1974); Hoffman v. Celebrezze, 405 F.2d 833, 836 (8th Cir. 1969). Fox’s appeal from denial of the Rule 60(b) motion raises virtually the same issue that would have been posed if he had timely appealed the dismissal for want of prosecution: Whether the showing of excusable neglect was such that refusal to grant relief from the dismissal constituted an abuse of discretion. Fox thus raises judicial error in the original judgment, contending the court erred in dismissing his case because he showed good cause for delay. The Rule 60(b) motion failed to present reasons not previously presented and considered by the court in its decision to dismiss. This alone is a controlling factor against granting relief. See Cline v. Hoogland, 518 F.2d at 778-79. This circuit has not allowed relief under Rule 60(b)(1) for judicial error other than for judicial inadvertence. See CRI, Inc. v. Watson, 608 F.2d 1137, 1143 (8th Cir.1979); Hoffman v. Celebrezze, 405 F.2d 833 (8th Cir.1969). This is not the case here. To prevent its use as a substitute for appeal, we have required a Rule 60(b) motion alleging judicial inadvertence to be made within the time period allowed for appeal. CRI, Inc. v. Watson, 608 F.2d at 1143; Hoffman v. Celebrezze, 405 F.2d at 836-37; see 7 Moore’s K 60.22[3] at 260-61 (2d ed. 1979). This was not done here. Fox filed his motion for reconsideration on June 22, 1979; the time period for filing a notice of appeal had expired on June 20, 1979. Belated filing of a Rule 60(b) motion cannot be used to circumvent jurisdictional time limits on appellate review. See Silas v. Sears, Roebuck & Co., 586 F.2d 382, 386 (5th Cir.1978); Demers v. Brown, 343 F.2d 427 (1st Cir.), cert. denied, 382 U.S. 818, 86 S.Ct. 40, 15" }, { "docid": "23081343", "title": "", "text": "quoting, Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 (5th Cir.), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970); see United States v. Walus, 616 F.2d 283, 288 (7th Cir.1980). Thus, the Rule is intended “to prevent the judgment from becoming a vehicle of injustice”. Walus, 616 F.2d at 288. According to Johnson Waste Materials v. Marshall, 611 F.2d 593, 600 (5th Cir.1980), quoting, Laguna Royalty Co. v. Marsh, 350 F.2d 817, 823 (5th Cir.1965), the Rule is to be given a liberal construction” and “is to be construed liberally to do substantial justice.” See Edgar, 312 F.2d at 538. In order to obtain relief under Rule 60(b)(2), on grounds of newly discovered evidence, the moving party must establish that: (1) the evidence was discovered after trial; (2) it exercised due diligence to obtain the evidence for trial; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence is such that a new trial probably would produce a new verdict. United States v. Gustafson, 728 F.2d 1078 at 1084 (8th Cir.1984); Walus, 616 F.2d at 287-88; Johnson Waste, 611 F.2d at 597; Edgar, 312 F.2d at 537. We consider these requirements seriatim. Judgment in this case was entered on August 27, 1982. The Tribe first became aware of Lone Dog’s grand jury testimony during the criminal trial the government brought against Strain, which began on November 1, 1982. It is clear that the evidence was discovered after trial. In denying the motion for a new trial, the trial court found that the Tribe had failed to prove that it had exercised due diligence to produce evidence of Lone Dog’s inconsistent stories in time for trial. We disagree. At the time of trial the Tribe had done everything it could have done to discredit Lone Dog’s deposition testimony and to establish that A & P and Lone Dog were involved in a conspiracy. The Tribe took Lone Dog’s deposition; the Tribe proved that Lone Dog had received a series of payments from Strain and that these payments" }, { "docid": "10701637", "title": "", "text": "at 560-62 (describing a consistent course of insulting and debasing conduct). We agree with the district court that the conduct to which Callanan was subjected was not “frequent, severe, physically threatening, or humiliating.” Furthermore, we feel that the Service, when it became aware of the improper behavior, took “prompt remedial action reasonably calculated to end the harassment.” Davis v. TriState Mack Distribs., Inc., 981 F.2d 340, 343 (8th Cir.1992) (quotations omitted). Thus, we conclude that the district court appropriately granted the Service’s motion for summary judgment on this claim. 2. The Rule 60(b)(2) Motion Callanan further argues that the district court wrongfully refused to grant her Rule 60(b)(2) motion to vacate the order granting summary judgment to the Service on her hostile environment claim. Rule 60(b)(2) “provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances.” Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 515 (8th Cir.) (quotation omitted), cert. denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984). The district court possesses wide discretion in determining whether to grant a motion under this Rule, and we will not reverse absent a clear abuse of that discretion. Atkinson v. Prudential Property Co., 43 F.3d 367, 371 (8th Cir.1994). Rule 60(b)(2), which applies to claims of newly discovered evidence, is a proper ground for relief where the movant shows: (1) that the evidence was discovered after [the summary judgment hearing]; (2) that the party exercised due diligence to discover the evidence before the end of [the summary judgment hearing]; (3) that the evidence is material and not merely cumulative or impeaching; and (4) that a new [hearing] considering the evidence would probably produce a different result. Id. Here, Callanan has failed to meet the fourth criterion. We are unpersuaded that the district court, even if it had known of the discrimination claims made by other employees at the Mankato branch, would have declined to grant the summary judgment motion. In other words, even in light of this newly discovered evidence, Callanan failed to substantiate that the Mankato postal facility" }, { "docid": "16495521", "title": "", "text": "award of liquidated damages. Reyher argues that Rule 59 does not apply because this motion did not seek to amend the judgment or obtain relief from it — it sought additional damages that should have been automatically and ministerially added by the trial judge. However, the Supreme Court rejected this argument in Osterneck, concluding that Rule 59 applies even if prejudgment interest is available as a matter of right. 489 U.S. at 176 n. 3, 109 S.Ct. at 992 n. 3. Moreover, we disagree that the trial court’s postverdict award of liquidated damages is a ministerial task; our cases demonstrate that it often requires “painstaking study” of the plaintiff’s case on the merits. See Morgan, 897 F.2d at 949. Finally, ADEA liquidated damages are “punitive in nature,” Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125, 105 S.Ct. 613, 624, 83 L.Ed.2d 523 (1985), and Rule 59 applies to postjudgment motions for punitive damages. See McConnell v. MEBA Medical & Benefits Plan, 778 F.2d 521, 526 (9th Cir.1985). Rule 60(b)(1) permits a district court, upon a party’s motion made “within a reasonable time,” to grant relief from a final judgment on grounds of “mistake, inadvertence, surprise, or excusable neglect.” A motion can only be considered under Rule 60(b)(1) if it states grounds for relief available under Rule 60. See, e.g., Spinar v. South Dakota Bd. of Regents, 796 F.2d 1060, 1062-63 (8th Cir.1986). Rule 60(b) “provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances.” United States v. Young, 806 F.2d 805, 806 (8th Cir.1986). Accord, Taylor v. United States, 642 F.2d 1118, 1119 (8th Cir.1981); Horace v. St. Louis S.W.R.R., 489 F.2d 632, 633 (8th Cir.1974); Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir.1969); Farmers Co-op. Elevator Ass’n v. Strand, 382 F.2d 224, 232 (8th Cir.1967). “[W]hen a motion can fairly be characterized as one under Rule 59(e) (i.e., lacking any special circumstances justifying relief under Rule 60(b)) it must be filed within the 10-day period and will not be treated under Rule 60(b)(1).” 7 Moore’s Federal Practice, 160 — 22[3]." }, { "docid": "22760431", "title": "", "text": "79 L.Ed.2d 56 (1984); Murphy v. Gallagher, 761 F.2d 878, 879 (2d Cir.1985). Thus, in order to maintain the instant federal action, appellees must invoke Rule 60(b) to vacate part of the initial judgment. To do that successfully, the rules governing 60(b) must be satisfied. We turn to those rules. Ill FED.R.CIV.P. 60(b) Rule 60(b) sets forth the grounds on which a court, in its discretion, can rescind or amend a final judgment or order. It provides, in pertinent part: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence ...; (3) fraud ..., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, ...; or (6) any other reason justifying relief from the operation of the judgment. Properly applied Rule 60(b) strikes a balance between serving the ends of justice and preserving the finality of judgments. House v. Secretary of Health and Human Services, 688 F.2d 7, 9 (2d Cir.1982); Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 401 (5th Cir.1981). In other words it should be broadly construed to do “substantial justice,” see Seven Elves, 635 F.2d at 401, yet final judgments should not “be lightly reopened.” Id.; Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir.1984). The Rule may not be used as a substitute for a timely appeal. United States v. O’Neil, 709 F.2d 361, 372 (5th Cir.1983); Rinieri v. News Syndicate Co., 385 F.2d 818, 822 (2d Cir.1967). Since 60(b) allows extraordinary judicial relief, it is invoked only upon a showing of exceptional circumstances. Ben Sager Chemicals Intern, v. E. Targosz & Co., 560 F.2d 805, 809 (7th Cir.1977); Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir.1969); Rinieri, 385 F.2d at 822. A motion seeking such relief is addressed to the sound discretion of the district court with appellate review limited to determining whether that discretion has been abused. Griffin," }, { "docid": "402033", "title": "", "text": "observed in the body of the text, plaintiffs filed their motion within the ten day time period as required for a Rule 59(e) motion. . Motions pursuant to Rule 60(b)(2), asserting newly discovered evidence, are, in any event, viewed with disfavor. Mitchell, 48 F.3d at 1041 (citing Dabney v. Montgomery Ward & Co., 692 F.2d 49, 52 (8th Cir.1982), cert. denied, 461 U.S. 957, 103 S.Ct. 2429, 77 L.Ed.2d 1316 (1983)). A person moving for relief pursuant to Rule 60(b)(2) must establish the following: (1) the evidence was discovered after trial; (2) due diligence was exercised to discover the evidence; (3) the evidence is material and not merely cumulative or impeaching; and (4) the evidence is such that a new trial would probably produce a different result. Mitchell, 48 F.3d at 1041; Atkinson, 43 F.3d at 371; Baxter Int’l, Inc. v. Morris, 11 F.3d 90 (8th Cir.1993). These requirements plaintiffs manifestly cannot meet here. . Because plaintiffs’ complaint alleges causes of action for fraud, the “fraud” ground of Rule 60(b)(3) must be distinguished from the plaintiffs’ fraud cause of action. To prevail on a motion under Rule 60(b)(3), \"the movant must show, with clear and convincing evidence, that the opposing party engaged in a fraud or misrepresentation that prevented the movant from fully and fairly presenting its case.” Atkinson, 43 F.3d at 367 (citing Paige v. Sandbulte, 917 F.2d 1108, 1109 (8th Cir.1990)) (emphasis added). The fraud plaintiffs allege is the basis for their cause of action; plaintiffs do not allege that any fraud prevented them from fully or fairly presenting the action here prior to dismissal of the complaint pursuant to Rule 12(b)(6). . This court has found no other authority holding that an investment may constitute a security even though the \"common enterprise” requirement of the Howey test has not been met. Indeed, two of the authorities cited in Maheu for the proposition that an investment vehicle may constitute a security even if there is no pooling arrangement or common enterprise antedate Howey. See Maheu, 282 F.Supp. at 429 (citing Securities and Exchange Comm’n v. Payne, 35 F.Supp." }, { "docid": "9335224", "title": "", "text": "his work. The district court enjoined Morris from disclosing certain items of confidential information to Vitek for one year, but refused to enjoin Morris from beginning employment with Vitek. Baxter appealed and we affirmed. While Baxter’s previous appeal was pending, Baxter filed a motion for relief from judgment under Rule 60(b)(2). Baxter claimed to have discovered after trial that Morris — in conjunction with Frank J. Swen-son, another former Baxter employee — had used Baxter’s proprietary information to prepare a “Confidential Business Plan” in 1988 for a start-up company named Microphoton-ies Corp. (“MPX”). The MPX Plan was allegedly discovered during Baxter’s deposition of Swenson in a pending California action. Baxter Diagnostics, Inc. v. AVL Scientific Corp., 798 F.Supp. 612 (C.D.Cal.1992). Baxter attached a copy of the MPX Plan to the Rule 60(b) motion. Baxter contends that this new information easts doubt on Morris’ veracity at his deposition and at trial. According to Baxter, this evidence — which Baxter could not find through diligent discovery before trial — probably would have changed the outcome at trial because it demonstrates that Morris could not be trusted to keep Baxter’s proprietary information secret. The district court disagreed and denied Baxter’s Rule 60(b) motion without an evidentia-ry hearing. II. DISCUSSION Rule 60(b) “provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances.” United States v. Young, 806 F.2d 805, 806 (8th Cir.1986) (per curiam), cert. denied, 484 U.S. 836, 108 S.Ct. 117, 98 L.Ed.2d 76 (1987). To prevail on its Rule 60(b)(2) motion, Baxter needed to establish: “(1) the evidence was discovered after trial; (2) [Baxter] exercised due diligence to discover the evidence before the end of the trial; (3) the evidence is material and not merely cumulative or impeaching; and (4) a new trial at which the evidence was introduced would probably produce a different result.” Peterson v. General Motors Corp., 904 F.2d 436, 440 (8th Cir.1990). Motions under Rule 60(b) are within the discretion of the district court and we reverse the district court’s denial of a Rule 60(b) motion only when the court clearly abused" }, { "docid": "23081341", "title": "", "text": "Discussion, a. The Rule 60(b) Motion. After the Tribe became aware of Lone Dog’s grand jury testimony, it moved for relief from judgment on the grounds of newly discovered evidence under Fed.R. Civ.P. 60(b)(2), fraud of an adverse party under Fed.R.Civ.P. 60(b)(3), and fraud upon the court under Fed.R. Civ.P. 60(b)(6). The trial court held that Rule 60(b)(2) was inapplicable to the facts of this case because: (1) Lone Dog’s inconsistent stories were not evidence which existed at the time of trial; (2) the evidence was merely cumulative or impeaching; and (3) the evidence was not such as probably would have affected the outcome of trial. We disagree. We also think a fraud has been practiced on the Tribe and on the court, which impinged the integrity of the trial process, and that the Tribe should have been granted a new trial under Rule 60(b)(2) and (3). We recognize that a Rule 60(b) motion is viewed with disfavor and is addressed to a district court’s discretion which an appellate court will not disturb in the absence of abuse. Dabney v. Montgomery Ward & Co., Inc., 692 F.2d 49, 52 (8th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 2429, 77 L.Ed.2d 1316 (1983); Edgar v. Finley, 312 F.2d 533, 536-37 (8th Cir.1963). Nevertheless, Rule 60(b) motions serve a useful, proper and necessary purpose in maintaining the integrity of the trial process, and a trial court will be reversed where an abuse of discretion occurs. The Rule “provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances,” Clarke v. Burkle, 570 F.2d 824, 830-31 (8th Cir.1978), quoting, Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir.1969); Consolidated Gas & Equip. Co. v. Carver, 257 F.2d 111, 114 (10th Cir.1958); see Assmann v. Fleming, 159 F.2d 332, 336 (8th Cir.1947). Rule 60(b) was intended to preserve “the delicate balance between the sanctity of final judgments ... and the incessant command of a court’s conscience that justice be done in light of all the facts.” Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C.Cir.1980)," }, { "docid": "7637933", "title": "", "text": "59(e) motion challenging the confirmation order, the motion was filed more than ten days after entry of the confirmation order and thus, was untimely. As a Rule 60(b) motion directed to setting aside the confirmation order, the Motion to Vacate did not stay or toll the finality of that order denying confirmation, and thus, this appeal, if deemed from the order denying confirmation, is untimely. Sanders, 862 F.2d at 169 (8th Cir.1988). Moreover, as an appeal from denial of a Rule 60(b) motion, this appeal does raise the underlying judgment for review. An appeal from denial of a Rule 60(b) motion only presents the appellate court with the question of whether the trial court abused its discretion in ruling on the motion. Sanders, 862 F.2d at 169; Browder v. Dir. Dep’t of Corrections, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). Thus, by, construing the Motion to Vacate as a Rule 60(b) motion directed to the confirmation order, we do not squarely consider the merits of that underlying order. We only ask whether the court abused its discretion in denying the Motion to Vacate. Brooks v. Ferguson-Florissant Sch. Dist., 113 F.3d 903, 904 (8th Cir.1997). In deciding whether the court abused its discretion in denying the Motion to Vacate, we are guided by the principle that Rule 60(b) relief provides “extraordinary relief’ which should be granted only upon an adequate showing of exceptional circumstances. Baxter Int’l. Inc. v. Morris, 11 F.3d at 92 (8th Cir.1993). See Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 515 (8th Cir.) (motions under Rule 60(b) are viewed with disfavor), cert. denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984). Because the Debtors presented no new evidence or new legal arguments in their Motion to Vacate, but instead, reiterated the substance of their objections asserted in the Motion to Alter, we find that the court did not abuse its discretion in denying the Motion to Vacate. Where a motion to vacate raises only issues of law that previously were rejected by the trial" }, { "docid": "23144379", "title": "", "text": "representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence in certain circumstances; (3) fraud, whether “intrinsic” or “extrinsic,” misrepresentation or other misconduct on the part of the adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged, or a prior judgment upon which it was based has been reversed or vacated, or it is no longer equitable that the judgment should have prospective application; and (6) any “other reason justifying relief from the operation of the judgment.” A motion based on Grounds (1), (2) or (3) must be made within a year after the judgment, order or proceeding was entered or taken; and a motion based on other grounds, including Ground (6), must be filed within a “reasonable time” after the judgment, order or proceeding was entered or taken. There is no question that a motion filed under Rule 60(b) addresses itself to the discretion of the district court, and that the action of the district court in connection with such a motion will not be reversed on appeal save for abuse. Pioneer Ins. Co. v. Gelt, 558 F.2d 1303, 1312 (8th Cir. 1977; Hale v. Ralston Purina Co., 432 F.2d 156, 159 (8th Cir. 1970); 11 Wright & Miller, Federal Practice & Procedure, § 2857. The authors just cited have said that “motions under Rule 60(b) involve a nice balance between the interest in finality and the desire to achieve justice. . . .” 11 Wright & Miller, § 2872, p. 261. And, several years ago in Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir. 1969), we said that Rule 60(b) “provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances.” The district court characterized the plaintiff’s Rule 60(b) motion, as first amended, as being based on the Rule’s Ground (1), mistake, and Ground (4), voidness of judgment. Plaintiff’s motion, as amended, did not refer in terms to Ground (6) heretofore mentioned. As to the plaintiff’s claim that the judgment was entered" }, { "docid": "15165624", "title": "", "text": "notice of appeal from the same order has been taken may be considered on its merits and denied, but not granted, by the trial court. Brode v. Cohn, 966 F.2d 1237, 1240 (8th Cir.1992) (citing Winter v. Cerro Gordo County Conservation Bd., 925 F.2d 1069, 1073 (8th Cir.1991)). The trial court may also indicate its willingness to grant such an order and instruct the parties to seek an order staying further proceedings on appeal and remanding the case to the trial court for a ruling on the motion. Winter v. Cetro Gordo County Conservation Bd., 925 F.2d 1069, 1073 (8th Cir.1991). Accordingly, the bankruptcy court had jurisdiction to hear appellants’ motion for relief from the September 20 order and to deny it, which it did. 2. Asserted Grounds for Relief from the Judgment Essentially, Appellants’ arguments fall within Rule 60(b)(2) and (b)(3) because they allege the discovery of new evidence and the existence of fraud. In order to obtain relief under (b)(2), the moving party must show that “(1) the evidence was discovered after trial; (2) the party exercised due diligence to discover the evidence before the end of the trial; (3) the evidence is material and- not merely cumulative or impeaching; and (4) a new trial considering the evidence would probably produce a different result.” McCormack v. Citibank, N.A., 100 F.3d 532, 542 (8th Cir.1996); see also, e.g., Mitchell v. Shalala, 48 F.3d 1039, 1041 (8th Cir.1995). Under (b)(3), the moving party must show by clear and convincing evidence that her opponent engaged in a fraud or misrepresentation that prevented the movant from fully and fairly presenting her case. Cowan v. Strafford R-VI School Dist., 140 F.3d 1153, 1159 (8th Cir.1998) (citing E.F. Hutton & Co. v. Berns, 757 F.2d 215, 216-17 (8th Cir.1985)); see also, e.g., Greiner v. City of Champlin, 152 F.3d 787, 789 (8th Cir.1998). Under either Rule 60(b)(2) or (b)(3), the moving party bears a heavy burden. Rule 60 provides extraordinary relief; and, therefore, it is viewed with disfavor. See Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 515 (8th Cir.1984)." }, { "docid": "23081340", "title": "", "text": "because Lone Dog still claimed the Fifth Amendment and thus was held to be an “unavailable witness”. Fed.R.Civ.P. 32(a)(3) ; Fed. R.Evid. 804(a)(1). On September 18, 1981, Lone Dog appeared as a witness before a federal grand jury. He testified that, prior to the time the contract between the Tribe and A & P was signed, Strain approached Lone Dog, told him he intended “to make some money off the contract”, and would be inclined to give some of this money to Lone Dog. Lone Dog was shown each of the checks which Strain had made out to Lone Dog, and testified as to what each allegedly had bought. Lone Dog then testified that the •six checks which reflected purchases of hay actually were “payoffs”. He also testified that a seventh check which reflected a purchase of a pick-up truck was partially a payoff. Lone Dog testified that he had neither sold nor delivered any hay to Strain. Finally, he testified that Attorney Strain had advised him to give false testimony during the deposition. II. Discussion, a. The Rule 60(b) Motion. After the Tribe became aware of Lone Dog’s grand jury testimony, it moved for relief from judgment on the grounds of newly discovered evidence under Fed.R. Civ.P. 60(b)(2), fraud of an adverse party under Fed.R.Civ.P. 60(b)(3), and fraud upon the court under Fed.R. Civ.P. 60(b)(6). The trial court held that Rule 60(b)(2) was inapplicable to the facts of this case because: (1) Lone Dog’s inconsistent stories were not evidence which existed at the time of trial; (2) the evidence was merely cumulative or impeaching; and (3) the evidence was not such as probably would have affected the outcome of trial. We disagree. We also think a fraud has been practiced on the Tribe and on the court, which impinged the integrity of the trial process, and that the Tribe should have been granted a new trial under Rule 60(b)(2) and (3). We recognize that a Rule 60(b) motion is viewed with disfavor and is addressed to a district court’s discretion which an appellate court will not disturb in the" }, { "docid": "4243821", "title": "", "text": "of 1992, making it the Secretary’s final decision. The District Court affirmed, granting summary judgment in favor of the Secretary on September 24, 1993. Mitchell then filed his Rule 60(b)(2) motion for relief from the District Court’s September 24 judgment. He also filed an appeal from that judgment with this Court. We considered Mitchell’s arguments on appeal and affirmed the District Court’s judgment, concluding that the ALJ’s decision was supported by substantial evidence on the record as a whole. Mitchell v. Shalala, 25 F.3d 712 (8th Cir.1994). We took this action without prejudice to the District Court’s opportunity to consider the new evidence and rule on Mitchell’s Rule 60(b)(2) motion. The District Court did so and denied the motion. Mitchell now appeals from the District Court order denying the motion. He urges us to reverse the District Court order as an abuse of its discretion and award benefits, or in the alternative, to remand the case to the ALJ for further consideration. II. Generally, Rule 60(b) provides for extraordinary relief, which may be granted only upon a showing of exceptional circumstances. Atkinson v. Prudential Ins. Co., 43 F.3d 367 (8th Cir.1994). Relief under Rule 60(b) is within the sound discretion of the district court. Id. at 371. We will not disturb that Court’s decision absent a cleat-abuse of its discretion. Ibid. More specifically, motions under Rule 60(b)(2) on the ground of newly discovered evidence are viewed with disfavor. Dabney v. Montgomery Ward & Co., 692 F.2d 49, 52 (8th Cir.1982), cert. denied, 461 U.S. 957, 103 S.Ct. 2429, 77 L.Ed.2d 1316 (1983). A movant may prevail on a Rule 60(b)(2) motion by showing: (1) the evidence was discovered after trial; (2) due diligence was exercised to discover the evidence; (3) the evidence is material and not merely cumulative or impeaching; and (4) the evidence is such that a new trial would probably produce a different result. Baxter Int’l Inc. v. Morris, 11 F.3d 90 (8th Cir.1993). We conclude that Mitchell failed to show due diligence, and that this new evidence is unlikely to produce a different result from that previously" }, { "docid": "15165623", "title": "", "text": "from the operation of the judgment.” Fed.R.Civ.P. 60(b)(2), (3), and (6). Relief under Rule 60(b) is “an extraordinary remedy that allows the court ‘to preserve the delicate balance between the sanctity of final judgments and the incessant command of a court’s conscience that justice be done in light of all the facts.’ ” Hoover v. Valley West D M, 823 F.2d 227, 230 (8th Cir.1987) (quoting Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 515 (8th Cir. 1984)); see also Design Classics, Inc. v. Westphal (In re Design Classics, Inc.), 788 F.2d 1384, 1386 (8th Cir.1986). Granting or denying a motion under Rule 60(b) is within the discretion of the trial court and may only be reviewed for an abuse of discretion. Design Classics, 788 F.2d at 1386. 1. Jurisdiction While courts have differed on the question, see 11 Charles Alan Wright et al., Federal Practice and Procedure § 2873, (2d ed.1995), the law in this circuit is clear. A motion for relief from a judgment or order filed after a notice of appeal from the same order has been taken may be considered on its merits and denied, but not granted, by the trial court. Brode v. Cohn, 966 F.2d 1237, 1240 (8th Cir.1992) (citing Winter v. Cerro Gordo County Conservation Bd., 925 F.2d 1069, 1073 (8th Cir.1991)). The trial court may also indicate its willingness to grant such an order and instruct the parties to seek an order staying further proceedings on appeal and remanding the case to the trial court for a ruling on the motion. Winter v. Cetro Gordo County Conservation Bd., 925 F.2d 1069, 1073 (8th Cir.1991). Accordingly, the bankruptcy court had jurisdiction to hear appellants’ motion for relief from the September 20 order and to deny it, which it did. 2. Asserted Grounds for Relief from the Judgment Essentially, Appellants’ arguments fall within Rule 60(b)(2) and (b)(3) because they allege the discovery of new evidence and the existence of fraud. In order to obtain relief under (b)(2), the moving party must show that “(1) the evidence was discovered after trial;" }, { "docid": "4243822", "title": "", "text": "upon a showing of exceptional circumstances. Atkinson v. Prudential Ins. Co., 43 F.3d 367 (8th Cir.1994). Relief under Rule 60(b) is within the sound discretion of the district court. Id. at 371. We will not disturb that Court’s decision absent a cleat-abuse of its discretion. Ibid. More specifically, motions under Rule 60(b)(2) on the ground of newly discovered evidence are viewed with disfavor. Dabney v. Montgomery Ward & Co., 692 F.2d 49, 52 (8th Cir.1982), cert. denied, 461 U.S. 957, 103 S.Ct. 2429, 77 L.Ed.2d 1316 (1983). A movant may prevail on a Rule 60(b)(2) motion by showing: (1) the evidence was discovered after trial; (2) due diligence was exercised to discover the evidence; (3) the evidence is material and not merely cumulative or impeaching; and (4) the evidence is such that a new trial would probably produce a different result. Baxter Int’l Inc. v. Morris, 11 F.3d 90 (8th Cir.1993). We conclude that Mitchell failed to show due diligence, and that this new evidence is unlikely to produce a different result from that previously reached by the ALJ. The new evidence offered by Mitchell is a Psychological Screening Evaluation conducted by Arkansas Rehabilitation Services. The evaluation reflects that Mitchell “is not literate,” and places “[h]is reading comprehension at the second grade level.” He asserts that the evaluation indicates that his educational level is marginal, which “would mandate a conclusion that he was disabled pursuant to the Vorn out worker rule.’ ” See 20 C.F.R. §§ 404.1562, 416.962. He offers the following explanation for his delay in submitting the evidence: the evaluation did not exist at the time of the administrative hearing; he was not represented by counsel at the hearing; and he was unable to recognize the need to present evidence with regard to his literacy or education level. In denying Mitchell’s motion, the District Court concluded that Mitchell was not diligent in presenting the evidence and expressed a belief that the evaluation was not credible. We agree. Like the District Court, we are not persuaded by Mitchell’s claim that the delay is due to the fact that he" }, { "docid": "23081342", "title": "", "text": "absence of abuse. Dabney v. Montgomery Ward & Co., Inc., 692 F.2d 49, 52 (8th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 2429, 77 L.Ed.2d 1316 (1983); Edgar v. Finley, 312 F.2d 533, 536-37 (8th Cir.1963). Nevertheless, Rule 60(b) motions serve a useful, proper and necessary purpose in maintaining the integrity of the trial process, and a trial court will be reversed where an abuse of discretion occurs. The Rule “provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances,” Clarke v. Burkle, 570 F.2d 824, 830-31 (8th Cir.1978), quoting, Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir.1969); Consolidated Gas & Equip. Co. v. Carver, 257 F.2d 111, 114 (10th Cir.1958); see Assmann v. Fleming, 159 F.2d 332, 336 (8th Cir.1947). Rule 60(b) was intended to preserve “the delicate balance between the sanctity of final judgments ... and the incessant command of a court’s conscience that justice be done in light of all the facts.” Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C.Cir.1980), quoting, Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 (5th Cir.), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970); see United States v. Walus, 616 F.2d 283, 288 (7th Cir.1980). Thus, the Rule is intended “to prevent the judgment from becoming a vehicle of injustice”. Walus, 616 F.2d at 288. According to Johnson Waste Materials v. Marshall, 611 F.2d 593, 600 (5th Cir.1980), quoting, Laguna Royalty Co. v. Marsh, 350 F.2d 817, 823 (5th Cir.1965), the Rule is to be given a liberal construction” and “is to be construed liberally to do substantial justice.” See Edgar, 312 F.2d at 538. In order to obtain relief under Rule 60(b)(2), on grounds of newly discovered evidence, the moving party must establish that: (1) the evidence was discovered after trial; (2) it exercised due diligence to obtain the evidence for trial; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence is such that a new trial probably would produce a new verdict. United" }, { "docid": "402032", "title": "", "text": "motion pursuant to Fed.R.Civ.P. 52(b) to be a viable alternative, although motions pursuant to both rules are often made jointly, and Rule 52(b) specifically provides for amendment of findings of fact. In the ruling plaintiffs ask this court to reconsider, which granted defendants’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the court made no findings of fact. Rather, the court treated as true the facts pleaded in the first amended complaint. See, e.g., Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Carney v. Houston, 33 F.3d 893, 894 (8th Cir.1994). . Rule 59(e) motion must be filed \"not later than 10 days after the entry of the judgment.” Fed.R.Civ.P. 59(e). A party's failure to file a timely Rule 59(e) motion eliminates that rule as the basis for the district court’s action. See Spangle v. Ming Tah Elec. Co., 866 F.2d 1002, 1003 (8th Cir.1989); Sanders v. Clemco Indus., 862 F.2d 161, 168 (8th Cir.1988); Townsend v. Terminal Packaging Co., 853 F.2d 623, 624 (8th Cir.1988). As the court observed in the body of the text, plaintiffs filed their motion within the ten day time period as required for a Rule 59(e) motion. . Motions pursuant to Rule 60(b)(2), asserting newly discovered evidence, are, in any event, viewed with disfavor. Mitchell, 48 F.3d at 1041 (citing Dabney v. Montgomery Ward & Co., 692 F.2d 49, 52 (8th Cir.1982), cert. denied, 461 U.S. 957, 103 S.Ct. 2429, 77 L.Ed.2d 1316 (1983)). A person moving for relief pursuant to Rule 60(b)(2) must establish the following: (1) the evidence was discovered after trial; (2) due diligence was exercised to discover the evidence; (3) the evidence is material and not merely cumulative or impeaching; and (4) the evidence is such that a new trial would probably produce a different result. Mitchell, 48 F.3d at 1041; Atkinson, 43 F.3d at 371; Baxter Int’l, Inc. v. Morris, 11 F.3d 90 (8th Cir.1993). These requirements plaintiffs manifestly cannot meet here. . Because plaintiffs’ complaint alleges causes of action for fraud, the “fraud” ground of Rule 60(b)(3) must be distinguished from the" } ]

[ { "docid": "18898147", "title": "", "text": "Opinion TsouCALAS, Judge: This action is before the Court, pursuant to US-CIT R. 56.1, on cross-motions for judgment on an agency record. It raises a question of first impression regarding the Commerce De partment’s authority to revoke an outstanding antidumping duty order. Background On August 22, 1984, the International Trade Administration of the Department of Commerce (hereinafter \"ITA” or \"Commerce”) issued an antidumping order covering steel plate from the Republic of Korea. 49 Fed. Reg. 33,298 (1984). Thereafter, on May 8, 1985, the governments of the United States and Korea entered into a voluntary restraint arrangement (\"VRA”) covering steel plate as well as other steel products. In return for quantitative restrictions on imports, the VRA contemplated that existing antidumping or countervailing duty orders on covered products be terminated. After receiving \"model letters” supplied by Commerce, a majority of U.S. steel producers wrote to the agency expressing their desire that the antidumping order at issue here be revoked. Based upon the lack of interest of the domestic industry, Commerce proceeded to publish notice of its intention to review the order, pursuant to § 751(b) of the Tariff Act of 1930, 19 U.S.C. § 1675(b), and its tentative determination to revoke. 50 Fed. Reg. 50,648 (1985). Following a hearing, Commerce terminated a previously commenced administrative review of the antidumping order and issued final notice of revocation. 51 Fed. Reg. 13,042 (1986). At all times, plaintiff, Gilmore Steel Corp. (\"Gilmore”), has opposed revocation of the order. Issue The issue presented is whether Commerce, over the opposition of the petitioner in the underlying antidumping investigation, may properly revoke an antidumping duty order solely on the basis of the expression of a lack of support by a majority of the domestic industry. Discussion The antidumping law, in relevant part, provides that Commerce: may revoke, in whole or part, a countervailing duty order or an antidumping duty order, or terminate a suspended investigation, after review under this section. Tariff Act of 1930, § 751(c), 19 U.S.C. § 1675(c) (1982 & Supp. III 1985). The Court in Manufacturas Industriales de Nogales, S.A. v. United States, 11 CIT" } ]

[ { "docid": "22392906", "title": "", "text": "NIES, Chief Judge. These appeals challenge the antidumping duties imposed on color television receivers from Korea imported between October 19, 1983 and April 30, 1984. The decisions from the Court of International Trade to be reviewed are Daewoo Electronics Co. v. United States, 712 F.Supp. 931 (Ct. Int’l Trade 1989) (“Daewoo I”); Daewoo Electronics Co. v. United States, 760 F.Supp. 200 (Ct. Int’l Trade 1991) (“Daewoo II”); and Daewoo Electronics Co. v. United States, 794 F.Supp. 389 (Ct. Int’l Trade 1992) (“Daewoo III”). We affirm in part, reverse in part, vacate the judgment and remand for entry of a judgment in accordance with this decision. I. Background, Appellants Daewoo Electronics Co. Ltd., Samsung Electronics Co., Ltd., and Goldstar Co., Ltd. (collectively “the Korean companies”), are leading importers of color television receivers into the United States' from Korea. Petitions by the International Union of Electronic, Electrical, Technical, Salaried, and Machine Workers, AFL-CIO, the International Brotherhood of Electrical Workers of America, and the Independent Radionic Workers of America and Industrial Union Department, AFL-CIO (collectively “the Unions”) and by Zenith Electronics Corp., resulted in an antidumping investigation into the Korean television receivers imported between October 19, 1983 and April 30, 1984. On December 28, 1984, the International Trade Administration of the Department of Commerce (“ITA”) published the final determinations of its first administrative review, concluding that dumping' margins of 14.88 percent, 12.23 percent and 7.47 percent existed on U.S. sales of Daewoo, Samsung, and Goldstar products respectively. Color Television Receivers from Korea; Final Results of Administrative Review of Antidumping Duty Order, 49 Fed.Reg. 50420, 50431 (1984). As a result of rulings of the Court of International Trade in the successive appeals and remands, the dumping duties were revised upward to 48.18 percent, 30.36 percent, and 33.95 percent for Daewoo, Samsung, and Goldstar, respectively which the trial court approved. The Korean companies, the Unions, and the United States have each appealed from the judgment of the Court of International Trade raising numerous issues. We address the propriety of the following holdings in the Daewoo opinions: ’ that 19 U.S.C. § 1677a(d)(1)(C) of the antidumping" }, { "docid": "11566231", "title": "", "text": "MAYER, Circuit Judge. OPINION The Royal Thai Government, Saha Thai Steel Pipe Co., Ltd., Siam Steel Pipe Import-Export Co., Ltd., Thai Union Steel Co., Ltd. and Thai Hong Steel Pipe Co., Ltd. appeal an order of the United States Court of International Trade granting the application of Allied Tube and Conduit Corp., Saw-hill Div., Cyclops Corp. and Wheatland Tube Co. for disclosure under administrative protective order of verification exhibits collected by the Department of Commerce during the administrative review for 1987 of a countervailing duty order involving circular welded carbon steel pipe and tube from Thailand. We affirm. BACKGROUND As part of the administrative review of its countervailing duty order, the International Trade Administration (ITA) of the United States Department of Commerce conducted a verification of the questionnaire responses submitted by the Royal Thai Government and Thai steel producers and exporters (respondents). The verification was conducted in Thailand. The ITA reviewed respondents’ documents to corroborate the information provided in their questionnaire responses. During the verification procedure, the ITA requested and received courtesy copies of some Thai government and company documents for use in preparing the verification report and to allow more time for the ITA to analyze the data contained in the documents. Allied Tube and Conduit Corp. and the other petitioners in the countervailing duty investigation (petitioners) filed an application for disclosure of business proprietary information under administrative protective order pursuant to 19 U.S.C. § 1677f(c)(l)(A) (Supp. II 1984), as amended by the Omnibus Trade and Competitiveness Act of 1988, Pub.L. No. 100-418, § 1332(2)(A), 102 Stat. 1107,1207 (1988) (the 1988 Act). The request for disclosure encompassed verification exhibits. The ITA denied petitioners’ application, stating that the “1988 Act contains no specific reference to the release of verification exhibits and, therefore, there is no specific mandate to release verification exhibits,” and that “[w]e believe there is a clear and compelling need to withhold release of verification exhibits.” Petitioners then applied to the Court of International Trade for an order directing the ITA to release the verification exhibits. 19 U.S.C. § 1677f(c)(2) (1982), as amended by the Omnibus Trade and" }, { "docid": "18898164", "title": "", "text": "Declaration of Eric J. Sinrod in Support of Motion for Judgment Upon an Agency Record, Exhibit A, Voluntary Restraint Arrangement at 2. A letter from the Deputy United States Trade Representative, which is part of the VRA, further provides that: if revocation does not take place within a reasonable period of time, the Government of the United States of America will agree to the termination of the Arrangement with respect to those products subject to the remaining order. In determining what constitutes a reasonable period of time, due consideration shall be given to the reason for the delay. Declaration of Eric J. Sinrod in Support of Motion for Judgment Upon an Agency Record, Exhibit A, Letter from Robert E. Lighthizer to Kim Chulsu at 4 (May 8, 1985). Gilmore claims that the majority of Korean steel plate imports are targeted to the West Coast and that the other domestic parties do not produce steel plate in that region of the country. Hence, according to Gilmore, a majority of the domestic industry is willing to forego the fair pricing protection provided by the antidumping order with respect to steel plate in favor of quantitative restrictions on other steel products. See Plaintiff’s Motion for Judgment Upon an Agency Record at 15. See Tariff Act of 1930, § 751(a), 19 U.S.C. § 1675(a) (1982 & Supp. Ill 1985). Prior to amendment, see Trade & Tariff Act of 1984, Pub. L 98-573 § 611(a)(2), 98 Stat 3031 (1984), § 1675(a) provided automatically for annual administrative review ol an antidumping order Under current law, which is effective with respect to antidumping investigations initiated on or after Oct. 30, 1984, see § 626(b)(1), 98 Stat. at 3042, such review is conducted only upon request. The Court refers to this regulation solely to present defendant’s position. Therefore, no consideration is given to whether Commerce’s decision is more properly considered to be a revocation based upon application by a party to the proceeding, see § 353.54(b), or whether Commerce has complied with the three year waiting period specified in § 353.54(c) See also Matsushita Elec. Indus. Co. 6" }, { "docid": "22369362", "title": "", "text": "DYK, Circuit Judge. This case presents questions concerning the interpretation of the Department of Commerce (“Commerce”) 1993 orders resulting from antidumping and countervail ing duty proceedings. Duferco Steel, Inc. (“Duferco”), an importer of carbon steel floor plate produced in Belgium, appeals from the United States Court of Internar tional Trade decision holding that its imported floor plate with “patterns in relief [i.e., raised figures at regular intervals that provide a skid-resistant surface] derived directly from rolling” was within the scope of the 1993 antidumping and countervailing duty orders (“1993 final orders” or “scope orders”) regarding cut-to-length carbon steel floor plate. Duferco Steel, Inc. v. United States, 146 F.Supp.2d 913 (CIT 2001). There is no claim in the 1999 final scope ruling that the language of the 1993 final orders can be interpreted to include appellant’s product. However, Commerce concluded that its 1993 final orders covered the product because the petitions that initiated the investigation included appellant’s product within the scope of the requested investigation, and no language in the 1993 final orders explicitly stated that carbon steel plate with “patterns in relief’ was excluded from the scope of the orders, as had been done with respect to universal mill plates. The Court of International Trade affirmed. We hold that Commerce’s approach is inconsistent with fundamental principles of administrative law and with our own earlier decisions. Scope orders may be interpreted as including subject merchandise only if they contain language that specifically includes the subject merchandise or may be reasonably interpreted to include it. Because Commerce made no claim in the 1999 final scope ruling under review that the scope orders here contain such language, we reverse the decision of the Court of International Trade. BACKGROUND Generally, “American industries may petition for relief from imports that are sold in the United States at less than fair value (‘dumped’), or which benefit from subsidies provided by foreign governments.” Allegheny Ludlum Corp. v. United States, 287 F.3d 1365, 1368 (Fed.Cir.2002) (citing 19 U.S.C. § 1675b (2000)). Commerce determines whether there have been sales at less than fair value, 19 U.S.C. § 1673(1) (2000)," }, { "docid": "110996", "title": "", "text": "MAYER, Circuit Judge. Parkdale International (“Parkdale”) appeals the judgment of the United States Court of International Trade denying its motion for summary judgment on the agency record. Parkdale Int’l v. United States, 429 F.Supp.2d 1324 (Ct. Int’l Trade 2006). Because the Department of Commerce’s (“Commerce”) application of its May 6, 2003, reseller policy to Parkdale’s subject entries during the Period of Review (“POR”), August 1, 2002 to July 31, 2003, does not have an impermissibly retroactive effect, we affirm. Background Parkdale is a reseller, importer, and exporter of corrosion-resistant carbon steel products (“CORE”) from Canada to the United States. Commerce first published an antidumping duty order on CORE from Canada in 1993. Antidumping Duty Orders: Certain Corrosiortr-Resistant Carbon Steel Flat Products from Canada^ 58 Fed. Reg. 44,162 (Aug. 19, 1993). Consequently, subject CORE may enter the United States only if accompanied by a cash deposit of the estimated dumping duties. See 19 U.S.C. § 1673e(a)(3). While liability to pay dumping duties accrues upon entry of subject merchandise, see 19 C.F.R. § 141.1(a), the actual duty is not formally determined until after entry, and not paid until the goods are liquidated by the Bureau of Customs and Border Protection (“Customs”), see, e.g., Bethlehem Steel Corp. v. United States, 27 F.Supp.2d 201, 207 (Ct. Int’l Trade 1998) (“Given the retrospective nature of Commerce’s administrative reviews, an exporter can not expect to predict exactly its potential antidumping duty liability at the time of import into the United States.”). On August 1, 2003, Commerce provided an opportunity for interested parties to request an administrative review of producers, resellers, and importers of subject CORE for the POR between August 1, 2002 and July 31, 2003. Antidumping or Countervailing Duty, Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Revietv, 68 Fed. Reg. 45,218 (Aug. 1, 2003). Several parties requested a review, but Parkdale chose not to participate. Commerce issued its preliminary results in September 2004, Certain Corrosiorir-Resistant Carbon Steel Flat Products from Canada: Preliminary Results of Antidumping Administrative Review, 69 Fed.Reg. 55,138 (Sept. 13, 2004), which Parkdale challenged as an interested party. Commerce rejected Parkdale’s" }, { "docid": "18321759", "title": "", "text": "Approximately one year before Gilmore filed its antidumping petition, an eleventh-hour agreement had been reached among the Commerce Department, the major U.S. steel producers, and the European Economic Community (EEC or EC), whereby the EEC agreed to restrict its exports of steel products to the United States in exchange for the U.S. steel industry’s commitment to drop all pending antidumping and countervailing duty proceedings against the EC steel producers. See 47 Fed.Reg. 49,058 (Oct. 29, 1982). This agreement, generally referred to as “the Arrangement,” was not acceded to by all domestic steel producers, Gilmore being one such nonsignatory. The Arrangement allows for abrogation by the EC producers if any U.S. producer — signatory or nonsignatory — files an antidumping petition respecting EC carbon steel products. During 1983 Gilmore sustained what it characterizes as a deteriorating business condition due to imports of hot-rolled carbon steel plate in cut lengths (steel plate) from Belgium and West Germany — both EC members. Gilmore therefore petitioned the ITA on September 29, 1983, for initiation of an antidumping investigation pursuant to 19 U.S.C. § 1673a(b)(l). With regard to both the alleged Belgian and West Germany LTFV sales, the petition was brought “on behalf of” all U.S. producers of steel plate. Alternatively, however, with respect to LTFV sales from West Germany, the petition was brought on behalf of a regional industry only, comprising West coast steel plate producers. At the time the petition was filed that regional industry numbered two producers — Kaiser Steel Corp. and Gilmore. By the end of 1983 their number had been winnowed to one, Gilmore being the sole survivor. Within 20 days of Gilmore’s filing the ITA made an affirmative determination under 19 U.S.C. § 1673a(c) that the petition set forth the allegations necessary for imposition of antidumping duties. Notice of the commencement of an investigation was, accordingly, published in the Federal Register on October 25, 1983. 48 Fed.Reg. 49,322. The ITA simultaneously notified the International Trade Commission (ITC) that a preliminary injury investigation should be undertaken. See 19 U.S.C. § 1673a(d). On November 7,1983, a unanimous ITC rendered an affirmative" }, { "docid": "13400310", "title": "", "text": "MEMORANDUM OPINION AND ORDER WATSON, Judge: Plaintiffs in this consolidated action challenge the determinations of the International Trade Administration of the U.S. Department of Commerce (ITA or Commerce) in the final results of the first administrative review with regard to importations of color television receivers (CTRs) from Korea, which were published on December 28, 1984 (49 Fed.Reg. 50420). The importations of CTRs from Korea are subject to administrative review under Section 751(a) of the Tariff Act of 1930, as amended, (the Act) 19 U.S.C. § 1675(a) as a result of the antidumping order of March 1, 1984 (49 Fed.Reg. 7620). Plaintiffs Daewoo Electronics Co., Ltd. and Daewoo Electronic Corporation of America, Inc. (collectively “Daewoo”), Gold Star Co., Ltd. and Gold Star Electronics International, Inc. (collectively, “Gold Star”), Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc. (collectively “Samsung”) are foreign manufacturers and exporters of CTRs from Korea, and respondents in the administrative proceedings subject to this judicial review. Zenith Electronics Corporation (“Zenith”) and the Independent Radionic Workers of America, the International Union of Electronic, Electrical, Technical, Salaried and Machine Workers, AFL-CIO-CLC, the International Brotherhood of Electrical Workers, and the Industrial Union Department AFL-CIO (collectively the “Unions”) are the defendant-intervenors, as well as plaintiffs in a consolidated action challenging the final results of this administrative review. Zenith and Unions are domestic interested parties who participated in the proceeding below as petitioners. The Court has jurisdiction over these consolidated actions pursuant to 28 U.S.C. § 1581(c). BACKGROUND Within a few days after publication of the antidumping order, plaintiffs Gold Star and Samsung requested Commerce to conduct an expedited review and early determination of dumping duties pursuant to Section 736(c) of the Act, 19 U.S.C. § 1673e(c). The requests to conduct a Section 736(c) review was accompanied by the information required under that section in order to determine the foreign market value and the United States price of the entries made between October 19, 1983, the date of the preliminary determination of the ITA when liquidation of the subject merchandise became suspended, and April 25, 1984, the date of the final injury determination" }, { "docid": "23045562", "title": "", "text": "ARCHER, Senior Circuit Judge. Eckstrom Industries, Inc. (“Eckstrom”) appeals the judgment of the Court of International Trade, Eckstrom Industries v. United States, 70 F.Supp.2d 1360 (Ct. Int’l Trade 1999), which affirmed the Department of Commerce’s (“Commerce”) final scope determination, Eckstrom Industries v. United States, Court No. 97-10-01913 (Dep’t Commerce March 26, 1999) (scope determination on remand). Because this ruling is not supported by substantial evidence, we reverse. BACKGROUND This appeal stems from an anti-dumping order concerning stainless steel, butt-welded pipe. Certain Welded Stainless Steel Butt Weld Pipe Fittings From Taiwan, 58 Fed.Reg. 33,250 (Dep’t Commerce June 16, 1993) .(final determination and anti-dumping duty order). The imposition of antidumping duties is governed by 19 U.S.C. § 1673 et seq. (1994); “dumping” is the sale of foreign merchandise in the United States at less than fair value. 19 U.S.C. § 1673(1).. In order to curtail such dumping activity, Commerce may issue an antidumping order imposing duties on the imported merchandise. Antidumping orders may be issued when (1) an investigation by Commerce reveals that “a class or kind of merchandise is being, or likely to be” dumped in the United States; and (2) an additional investigation by the International Trade Commission (“ITC”) determines that “an industry in the United States” is “materially injured” or “threatened with material injury,” or “the establishment of an industry in the United States is materially retarded” by imports of that merchandise or sales of that merchandise for import. 19 U.S.C. § 1673. On May 22, 1992, Flowline Division of Markovitz Enterprises, Inc. (“Flowline”), a U.S. producer of stainless steel butt-weld pipe fittings, filed a petition with the Department of Commerce, pursuant to the procedure authorized by 19 U.S.C. § 1673a(b), requesting antidumping investigations of certain stainless steel butt- weld pipe fittings from Taiwan and Korea. The petition described the targeted merchandise as follows: The pipe fittings that are subject to this petition are classifiable under Item 610.8948 of the Tariff Schedules of the United States Annotated, and under 7307.23 of the Harmonized Tariff Schedule. This category covers both finished and unfinished fittings. More specifically, the fittings subject to" }, { "docid": "22307195", "title": "", "text": "MICHEL, Circuit Judge. ORDER This appeal is from the judgment of the United States Court of International Trade dated January 14, 1988 (.Zenith II). The United States seeks review of that court’s Opinion and Order dated April 24, 1986, Zenith Electric Corp. v. United States, et al., 633 F.Supp. 1382 (Ct. Int’l Trade 1986) (.Zenith I), which reversed the final determination of the International Trade Administration, Department of Commerce (Department), in an administrative review under 19 U.S.C. § 1675(a) (1982 and Supp. II 1984), 50 Fed.Reg 24,278 (1985), of an anti-dumping order, T.D. 71-76, Television Receiving Sets, Monochrome and Color, from Japan, 36 Fed.Reg 4597 (Dep’t Comm. 1971), and remanded the case to the Department for redetermination. Background In accordance with the antidumping laws in effect in 1982, after an affirmative determination of antidumping duties, the International Trade Administration (ITA) was required annually to redetermine the amount of the duty, i.e., the margin by which the foreign market value of merchandise subject to the antidumping order exceeds the United States price. 19 U.S.C. § 1675(a) (1982). Various adjustments are made to the U.S. price before the adjusted U.S. price is subtracted from foreign market value. One of these adjustments was disputed in this case: the amount of any taxes imposed in the country of exportation directly upon the exported merchandise or components thereof, which have been rebated, or which have not been collected, by reason of the exportation of the merchandise to the United States, but only to the extent that such taxes are added to or included in the price of such or similar merchandise when sold in the country of exportation; .... 19 U.S.C. § 1677a(d)(l)(C) (1982) (emphasis added). Although the Department had admitted in other, earlier determinations that the “addition to section 772(d)(1)(C) of the ‘but only to the extent’ language, intended that [the Department] measure absorption and limit the addition to the tax passed through,” Color Television Receivers from Korea, 49 Fed.Reg 7620, 7624 (Dep’t Comm.1984) (final determination of sales at less than fair value), it further stated that because of “informational difficulties,” id., “it [was]" }, { "docid": "10475001", "title": "", "text": "OPINION RESTANI, Judge: Plaintiffs, IPSCO, Inc. and IPSCO Steel, Inc. (collectively IPSCO), contest a final determination by the United States Department of Commerce, International Trade Administration (ITA) that oil country tubular goods (OCTG) from Canada are being sold in the United States at less than fair value. Oil Country Tubular Goods from Canada, 51 Fed.Reg. 15,029 (Apr. 22, 1986), as amended Oil Country Tubular Goods (OCTG) from Canada 51 Fed.Reg. 29,579 (Aug. 19, 1986). Before the court is plaintiffs’ motion for judgment upon the agency record, pursuant to Rule 56.1 of the rules of this court. Defendant, United States, opposes plaintiffs’ motion and seeks affirmance of the administrative determination under challenge. BACKGROUND A petition was filed with ITA in July 1985 on behalf of the domestic OCTG industry alleging that imports of OCTG from Canada were being, or were likely to be, sold in the United States at less than fair value, and that these imports were materially injurious, or threatening to injure, an industry in the United States. See 19 U.S.C. § 1673 (1982 & Supp. IV 1986). ITA published notice of its determination to initiate an investigation in August. Oil Country Tubular Goods from Canada, 50 Fed.Reg. 33,387 (Aug. 19, 1985). ITA sent questionnaires to four Canadian OCTG producers under investigation, including IPSCO. After examining the responses of the Canadian companies, ITA issued its preliminary determination that imports of OCTG from Canada were being sold at less than fair value in the United States, and that IPSCO’s imports were being dumped at a margin of 40.88 percent. Oil Country Tubular Goods from Canada, 51 Fed.Reg. 660, 662 (Jan. 7, 1986). ITA published its final affirmative anti-dumping duty determination in April, 1986, finding IPSCO to have sold OCTG in the United States at a weighted average dumping margin of 40.85 percent during the period of investigation. 51 Fed.Reg. at 15,-036. After the United States International Trade Commission issued its final determination of material injury, ITA published an antidumping order requiring the cash deposit of estimated antidumping duties on all entries of OCTG from Canada at the rates set at" }, { "docid": "22341017", "title": "", "text": "Southwire’s petitions should be considered to be filed “on behalf of” the domestic industry, as contemplated by the statute. 1. The phrase “on behalf of” is not among the terms defined in 19 U.S.C. § 1677. Nor does the statutory context provide us any concrete indication of Congress’s intended meaning. When such an interpretational gap exists regarding a statutory provision, we are to examine whether, in its own interpretation of its responsibilities under the Act, the agency charged with the everyday administration of the provision applies “a permissible construction.” Chevron U.S.A. Inc. v. National Resources Defense Council Inc., 467 U.S. 837, 866, 104 S.Ct. 2778, 2793, 81 L.Ed.2d 694 (1984). Our duty is not to weigh the wisdom of, or to resolve any struggle between, competing views of the public interest, but rather to respect legitimate policy choices made by the agency in interpreting and applying the statute. See Chevron, 467 U.S. at 866, 104 S.Ct. at 2793. Thus, in our review here we will simply determine whether Commerce’s interpretation of the phrase “on behalf of,” as it pertains to the statutory requirements for filing a petition to initiate a countervailing or antidumping duty investigation, is a permissible construction. Whether we would come to the same conclusion, were we to analyze the statute anew, is not the issue. 2. The Court of International Trade held that its decision was consistent with this court’s holding in Oregon Steel. We agree, but with a caveat — the issue in this action begins at the opposite end of the spectrum from the issue in Oregon Steel, a case which could be read to support either outcome here. Although we reverse the decision of the Court of International Trade, our decision, too, is consistent with Oregon Steel. In Oregon Steel, the court faced a situation in which Commerce, responding to a petition, initiated an investigation and later issued an antidumping duty order covering certain steel plate imports from Korea. The United States and Korea later entered into a Voluntary Restraint Agreement under which Korea agreed to import restrictions conditioned on revocation of the anti-dumping" }, { "docid": "18420720", "title": "", "text": "Memorandum and Order on Plaintiffs Motion for Injunctive Relief WATSON, Judge. Plaintiffs have moved for a preliminary injunction enjoining the defendant from enforcing the Commerce Department’s International Trade Administration’s (ITA) Early Determination of Antidumping Duties (Early Determination) made pursuant to 19 U.S.C. § 1673e(c), as well as returning dumping margins to the pre-Early Determination levels. Plaintiffs allege that the ITA’s Early Determination was not made in accordance with the law, resulting in the improper reduction of dumping margins from the approximately 65 percent level determined to exist in the ITA’s Antidumping Duty Order to a revised level of approximately 6 percent proclaimed by the ITA in the Early Determination in question. This Court finds that the plaintiffs are not entitled to an injunction that would return dumping margins to their pre-Early Determination level because such a remedy constitutes the ultimate relief plaintiffs are seeking. The Court does however, enjoin liquidations of the two August, 1983 entries that are encompassed within the ITA’s Early Determination review. Plaintiffs on September 30, 1982 filed petitions with the ITA and the International Trade Commission (ITC) alleging that carbon steel wire rod from Brazil was being sold in the United States at less than fair market value. The ITA and ITC made affirmative final determinations (48 Fed. Reg. 43202 (1983) and 48 Fed.Reg. 51178 (1983)) and an Antidumping Duty Order was published by the ITA in the Federal Register on November 16, 1983. 48 Fed. Reg. 52110 (1983). This Antidumping Duty Order directed United States Customs officers to require cash payment of estimated duties of 49.61 percent for future importations of carbon steel from Cosigua and 76.49 percent when importations from Belgo-Mineira occur. On November 19, 1983 Cosigua and Belgo-Mineira requested that the ITA make an Early Determination and waive the cash deposit requirement mandated by the ITA’s Antidumping Order. The ITA published notice of its intent to make an Early Determination on December 19, 1983. 48 Fed. Reg. 56098 (1983). Subsequently the ITA published its Early Determination of anti-dumping duty on April 10, 1984. 49 Fed. Reg. 14156 (1984). 19 U.S.C. § 1673e(c) requires" }, { "docid": "23134674", "title": "", "text": "Corporation. Zenith Electronics Corporation is a United States manufacturer of televisions. It provided comments during the administrative proceedings and was a defendant-inter-venor in the proceedings in the Court of International Trade. It has not participated in this appeal. On March 10, 1971, the Department of the Treasury issued an antidumping duty order covering television receivers, monochrome and color, from Japan. Television Receiving Sets, Monochrome and Color, From Japan, 36 Fed.Reg. 4597. In 1979, administration of the antidumping laws was transferred to the Department of Commerce, specifically, the United States International Trade Administration (ITA). The ITA’s consolidated fifth through eighth reviews of the 1971 antidump-ing duty order, which are the reviews involved in this appeal, covered imports during the period from April, 1983 through February, 1987. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 50 Fed.Reg. 44,825 (Nov. 27, 1985); 51 Fed. Reg. 13,273 (Apr. 18, 1986); 51 Fed.Reg. 24,883 (July 9, 1986); 52 Fed.Reg. 18,937 (May 20, 1987). These consolidated reviews resulted in the imposition of antidumping duties on NECHE’s television receivers imported into the United States. NEC challenges the method by which the ITA calculated NEC’s antidumping duty margin. Statute provides that the antidump-ing duty margin equals “the amount by which the foreign market value exceeds the United States price for the merchandise.” 19 U.S.C. § 1673 (1988). In each of the four administrative reviews at issue, the ITA concluded that NEC had not sufficiently shown that certain related party sales in the home market of Japan “were made at arm’s length.” Final Results, 54 Fed.Reg. at 35,522. The effect of NEC’s failure to make that showing was that the related-party sales — which allegedly were at the level of trade of NEC’s sales in the United States market used in the calculation of United States price (USP) — -were not used in the ITA’s calculation of foreign market value (FMV)- Instead, the first sale in the home market to an unrelated party was used. The ITA also concluded that NEC had not sufficiently quantified, and thus was not entitled to, a level-of-trade adjustment that NEC had sought in" }, { "docid": "22341018", "title": "", "text": "of,” as it pertains to the statutory requirements for filing a petition to initiate a countervailing or antidumping duty investigation, is a permissible construction. Whether we would come to the same conclusion, were we to analyze the statute anew, is not the issue. 2. The Court of International Trade held that its decision was consistent with this court’s holding in Oregon Steel. We agree, but with a caveat — the issue in this action begins at the opposite end of the spectrum from the issue in Oregon Steel, a case which could be read to support either outcome here. Although we reverse the decision of the Court of International Trade, our decision, too, is consistent with Oregon Steel. In Oregon Steel, the court faced a situation in which Commerce, responding to a petition, initiated an investigation and later issued an antidumping duty order covering certain steel plate imports from Korea. The United States and Korea later entered into a Voluntary Restraint Agreement under which Korea agreed to import restrictions conditioned on revocation of the anti-dumping order. Commerce accordingly surveyed the domestic industry, and found that six of seven domestic producers of steel plate favored the Agreement over the antidumping order. Only Oregon Steel Mills, Inc., at that time known as Gilmore Steel Corp., continued to favor the anti-dumping duty order. Oregon Steel, 862 F.2d at 1542, 7 Fed.Cir.(T) at 23. Commerce proceeded to revoke the anti-dumping order in light of the lack of industry support for its continued existence. Oregon Steel Mills appealed to the Court of International Trade, which ordered the reinstatement of the order. This court reversed, holding that “just as industry support underlies the merits of an order,” Commerce may revoke an order for lack of industry support. Oregon Steel, 862 F.2d at 1545, 7 Fed.Cir.(T) at 27-28. The court noted that “[w]e do not need to define ‘lack of support’ with precision in this case. The lack of industry support here is overwhelming. Moreover, the industry is not simply indifferent, but has expressed á positive desire to eliminate the antidumping order in order to secure other" }, { "docid": "14910292", "title": "", "text": "Memorandum Opinion and Order DiCarlo, Judge: Plaintiffs instituted this action pursuant to Section 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(i) (Supp. II 1984), and 28 U.S.C. § 1581(c) (1982), to contest the final affirmative injury determination of the United States International Trade Commission (Commission) in the an-tidumping investigation of Certain Welded Carbon Steel Pipes and Tubes From the Republic of Korea and Taiwan, 49 Fed. Reg. 19747 (May 9, 1984), which resulted in the issuance by the United States Department of Commerce, International Trade Administration (Commerce) of two antidumping duty orders on categories of products covered by the Commission’s determination. Plaintiffs now move for a preliminary injunction to delay an administrative review of the antidumping duty orders under section 751 of the Trade Agreements Act of 1979, as amended by the Tariff and Trade Act of 1984,19 U.S.C. § 1675, for the eleven month period prior to October 1, 1984. Plaintiffs’ motion is denied. I. Background Commerce published final antidumping duty orders on two categories of pipes and tubes from the Republic of Korea, finding margins of 1.47 percent and .90 percent. During the period of the investigations, the average margins at which these classes of merchandise undersold domestic products were 30 percent and 19 percent respectively. On June 27,1984 plaintiffs filed an action contesting the Commission’s determination that an industry in the United States is materially injured by imports of the Korean pipe and tube products. Plaintiffs argue that the affirmative injury determination of the Commission is unlawful since it failed to take into consideration the size of the dumping margins in connection with its causation analysis under 19 U.S.C. § 1677(7)(B). The case is pending before the Court and all issues have been fully briefed. Oral argument was held on July 17, 1986. In accordance with a voluntary restraint agreement entered into by the United States and the government of Korea, the antidumping duty orders were revoked by Commerce for all pipes and tubes exported to the United States on or after October 1, 1984. As a result, only pipes and tubes" }, { "docid": "22392907", "title": "", "text": "by Zenith Electronics Corp., resulted in an antidumping investigation into the Korean television receivers imported between October 19, 1983 and April 30, 1984. On December 28, 1984, the International Trade Administration of the Department of Commerce (“ITA”) published the final determinations of its first administrative review, concluding that dumping' margins of 14.88 percent, 12.23 percent and 7.47 percent existed on U.S. sales of Daewoo, Samsung, and Goldstar products respectively. Color Television Receivers from Korea; Final Results of Administrative Review of Antidumping Duty Order, 49 Fed.Reg. 50420, 50431 (1984). As a result of rulings of the Court of International Trade in the successive appeals and remands, the dumping duties were revised upward to 48.18 percent, 30.36 percent, and 33.95 percent for Daewoo, Samsung, and Goldstar, respectively which the trial court approved. The Korean companies, the Unions, and the United States have each appealed from the judgment of the Court of International Trade raising numerous issues. We address the propriety of the following holdings in the Daewoo opinions: ’ that 19 U.S.C. § 1677a(d)(1)(C) of the antidumping law requires that ITA make an econometric analysis of tax incidence in foreign markets {Dae-woo I); that the ex factory price must be used for tax adjustments of the U.S. price {Daewoo II); and that under 19 U.S.C. § 1673f(a) a bond deposit may not cap the amount of liability for antidumping duties {Daewoo III). The identical issue of the multiplier effect of 19 U.S.C. § 1677a(d)(l)(C) raised in the Korean companies’ appeal was rejected in the recently decided appeal, Zenith Electronics Corp. v. United States, 988 F.2d 1573, 1581 (Fed.Cir.1993), which is controlling here. In addition, our disposition of the tax incidence issue moots two other issues: -first, the Korean Companies’ appeal from the holding of Daewoo II, 760 F.Supp. at 204-07, rejecting the ITA’s finding of full tax pass-throiigh in the Korean receiver market; and second, the Unions’ challenge of’ the ITA’s use of best information available pursuant to 19 U.S.C. § 1677e(c) to adjust the USP. Daewoo III, 794 F.Supp. at 391-92. II. Adjustment for Taxes Levied On Home Country Sales Only" }, { "docid": "4780366", "title": "", "text": "Opinion Tsoucalas, Judge: This consolidated action is before the Court on plaintiffs’ (Gold Star Co. Ltd., et al., and Samsung Electronics Co., Ltd., et al.) (hereinafter \"Gold Star” and \"Samsung” respectively) motion for summary judgment on the administrative record pursuant to Rule 56.1 of the Rules of this Court. Plaintiffs challenge the legality of the Department of Commerce, International Trade Administration’s (\"ITA” or \"Commerce”) scope clarification ruling. Public Record Documents 13, 15. (hereinafter \"P.R. Doc.-.”). The ruling included separately imported color picture tubes (\"CPTs”) and printed circuit boards (\"PCBs”), when subsequently assembled together, within the scope of the antidumping duty order concerning Color Television Receivers from Korea, 49 Fed. Reg. 18,336 (Dep’t Comm. 1984) (antidumping duty order) (hereinafter \"CTV Order”). Defendants oppose plaintiffs’ motion contending that Commerce based its decision upon substantial evidence in the record and did nothing more than lawfully clarify the scope of the existing CTV Order. Background Commerce and the United States International Trade Commission (\"ITC”), in separate investigations, determined that color television receivers from Korea were being sold at less than fair value and were materially injuring a United States industry. 49 Fed. Reg. 18,336-37. On June 1, 1984, Samsung submitted a letter to Commerce requesting a binding determination as to the applicability of the CTV Order to the importation of certain television components and subassemblies. P.R. Doc. 1. On January 9, 1986, Commerce directed Customs officials to suspend liquidation of, but not collect cash deposits on, printed circuit boards and color picture tubes pending resolution of whether those items were covered by the CTV Order. See P.R. Docs. 13-15. Commerce subsequently notified the interested parties on January 23, 1986 of the suspension of liquidation and afforded the parties an opportunity to respond via comments submitted by February 5, 1986 on any matters they wished considered. See P.R. Doc. 2. Plaintiffs and intervenors filed timely comments. Commerce determined it had sufficient information and the authority to clarify the CTV Order based on the comments it had received from the interested parties. The comments submitted to Commerce contained the relevant excerpts from and references to documents" }, { "docid": "22140046", "title": "", "text": "DAVIS, Circuit Judge. This is an appeal by the United States from a decision of the United States Court of International Trade (CIT) holding that the International Trade Administration (ITA or agency) of the Department of Commerce (Commerce) is required under section 776 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1677e(a) to verify information submitted to it by a foreign manufacturer during a periodic review of an outstanding antidumping duty order. We affirm. I On August 28,1973, the Assistant Secretary of the Treasury published a finding of dumping with regard to stainless steel wire rods from France. 38 Fed.Reg. 22961 (1973). These rods thus became subject to the imposition of an antidumping duty in an amount equal to the difference between the foreign market value and the purchase price for such rods, pursuant to the Anti-dumping Act of 1921, as amended, 19 U.S.C. § 160(a). The Antidumping Act of 1921 was subsequently replaced, effective January 1,1980, by a new antidumping law enacted as part of Title VII of the Tariff Act of 1930, as amended. Title I of the Trade Agreements Act of 1979, Pub.L. 96-39, 93 Stat. 144, 146-193. Section 106 of the new Act provided that “findings in effect on the effective date of this Act ... shall remain in effect, subject to review under [the new] section 751 of the Tariff Act of 1930” (providing for periodic reviews). 93 Stat. 193. In addition, the responsibility for administering the antidumping law and acting as the “administering authority” under section 751 (codified at 19 U.S.C.,§ 1675) was transferred from the Treasury Department to the Secretary of Commerce, effective January 2, 1980. At Commerce, the anti-dumping law’s administration was delegated to the ITA. Final results of the ITA’s first administrative periodic review under section 751(a), 19 U.S.C. § 1675(a), with regard to stainless steel wire rods from France, were published on November 9, 1981, covering January 1974 through June 1980. The final results of this review were not challenged in court, although the domestic manufacturers apparently did raise in a prehearing brief the question now before" }, { "docid": "23341261", "title": "", "text": "NIES, Chief Judge. Intrepid appeals from the order of the United States Court of International Trade in Intrepid v. Pollock, 712 F.Supp. 212 (Ct.Int’l Trade 1989) (Tsoucalas, J.), denying its motions under 15(a) and (d) of the Rules of the Court of International Trade for leave to supplement and amend its complaint, and dismissing its action sua sponte. We reverse the rulings on the motions, vacate the judgment, and remand for proceedings on the merits. I Intrepid imported certain welded steel pipes (BS-1387) from Thailand into Puerto Rico between July 1987 and February 1988. Although not originally required on the July shipment, the International Trade Administration of the Department of Commerce (ITA) subsequently directed the United States Customs Service to suspend liquidation and to obtain cash deposits for estimated duties on such imports, pursuant to certain outstanding ITA antidumping and countervailing duty orders. In February 1988, Intrepid made a request to the ITA for exclusion of its steel pipes from the scope of the antidumping duty order. Before a ruling was made on its request to ITA, Intrepid commenced suit in the Court of International Trade on April 12, 1988, against the District Director of Customs and the United States asserting that the BS-1387 pipe was not within the scope of the outstanding orders; that the original orders did not adequately describe the class of investigated merchandise; that it had costed the merchandise on the basis of entry without duties which had not been required in July; and that it would be irreparably harmed if it had to deposit cash pending liquidation. Asserting jurisdiction under 28 U.S.C. § 1581(i) (1988), it sought to enjoin Customs from collecting cash deposits, as opposed to requiring a bond, for estimated duties pertaining to the imported steel pipes and such other relief as was just. Its motion for a temporary restraining order and a preliminary injunction was denied on April 15, 1988. In early January 1989, the court requested a status report from the parties. The government responded that in the interim Customs did permit Intrepid to post a bond, rather than to deposit" }, { "docid": "23134673", "title": "", "text": "SCHALL, Circuit Judge. NEC Home Electronics, Ltd. (NECHE) and NEC Technologies, Inc. (NECT) (collectively “NEC”) appeal from the May 2, 1994 final decision of the United States Court of International Trade in NEC Home Electronics, Ltd. v. United States, 16 I.T.R.D. (BNA) 1618, 1994 WL 176914 (1994). In its decision, the court affirmed the final results of four consolidated administrative reviews of the antidumping order for television receivers, monochrome and color, from Japan, 64 Fed.Reg. 35,517 (Aug. 28, 1989) (Final Results ). For the reasons set forth below, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion. BACKGROUND A. Summary of the Case NECHE is a Japanese company that manufactures consumer electronics products, including color televisions; it markets these products in Japan, the United States, and various other countries. NECT is a company located in the United States that buys NEC-brand televisions from NECHE and •sells them in the United States. Both NECHE and NECT are wholly-owned subsidiaries (NECHE directly, and NECT indirectly) of NEC Corporation, a Japanese Corporation. Zenith Electronics Corporation is a United States manufacturer of televisions. It provided comments during the administrative proceedings and was a defendant-inter-venor in the proceedings in the Court of International Trade. It has not participated in this appeal. On March 10, 1971, the Department of the Treasury issued an antidumping duty order covering television receivers, monochrome and color, from Japan. Television Receiving Sets, Monochrome and Color, From Japan, 36 Fed.Reg. 4597. In 1979, administration of the antidumping laws was transferred to the Department of Commerce, specifically, the United States International Trade Administration (ITA). The ITA’s consolidated fifth through eighth reviews of the 1971 antidump-ing duty order, which are the reviews involved in this appeal, covered imports during the period from April, 1983 through February, 1987. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 50 Fed.Reg. 44,825 (Nov. 27, 1985); 51 Fed. Reg. 13,273 (Apr. 18, 1986); 51 Fed.Reg. 24,883 (July 9, 1986); 52 Fed.Reg. 18,937 (May 20, 1987). These consolidated reviews resulted in the imposition of antidumping duties on NECHE’s television receivers imported into the" } ]

[ { "docid": "1836627", "title": "", "text": "dismiss that case. The supporting affidavit of defendant’s president stated: “The respondent has abandoned its advertising that the smoke from its ‘Philip Morris’ brand of cigarettes is less irritating to the throat than the smoke from cigarettes of the other leading brands. It has also abandoned the use of the hygroscopic agent mentioned in the said order and which was the basis of the said advertising. It has also abandoned any advertising representing that the smoke from its said cigarettes will not leave an after-taste. “It is not the intention of respondent to resume said advertising or the use of the said hygroscopic agent.” Plaintiff sought unsuccessfully to introduce the motion to dismiss and supporting affidavit in effect as admissions against interest. Additionally, plaintiff offered, again basically as admissions against interest, the testimony of defendant’s former Director of Research (dead at the time of this trial) adduced in 1943 in the same proceeding before the Federal Trade Commission. In denying both offers — ■ i. e., the motion to dismiss the Federal Trade Commission complaint and the testimony of the Director of Research, the trial court expressed the opinion that such evidence did not constitute admissions against interest and was not relevant to establish any pertinent fact. In taking issue with the trial court’s exclusion of the offered evidence, plaintiff relies upon the general rule, undisputed here, that any statement made by a party to an action which is against his own interest and which in its nature tends to establish or disprove any material fact in the case is competent to be put in evidence against him in the trial of the action. 31A C.J.S. Evidence § 272; 20 Am.Jur., Evidence § 544. Under this principle, an admission in a pleading in one action may be received in evidence against the pleader on the trial of another action to which he is a party, in favor of a party to the latter action, provided the admission is relevant and material to the issues being litigated. See 31A C.J.S. Evidence § 303; 20 Am. Jur., Evidence § 630; cf. Albertson" } ]

[ { "docid": "887203", "title": "", "text": "together with all inferences that can be reasonably drawn therefrom, there can be but one reasonable conclusion as to the proper judgment. O’Neil v. W. R. Grace & Co., 5 Cir., 1969, 410 F.2d 908; Leach v. Millers Life Ins. Co. of Tex., 5 Cir., 1968, 400 F.2d 179. Viewed by this standard, and particularly in view of the credibility issues inherent in a case of this nature, we cannot say that the district court erred in denying the motion for a judgment notwithstanding the verdict. The judgment of the district court on the jury verdict in favor of the appellee Sherman is hereby reversed and the matter is remanded for a new trial. The final judgment dismissing the cross-claim for indemnification against Continental is, likewise, reversed. Reversed and remanded. ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC Before RIVES, AINSWORTH and MORGAN, Circuit Judges. PER CURIAM: The Petition for Rehearing is DENIED and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied. . The private pleasure warranty contained in the policy reads as follows: The coverage under this policy shall terminate upon the sale, assignment, transfer or pledge on the interest insured hereby or upon the chartering, hiring or use of the vessel for other than private pleasure purposes unless the previous written consent of this Company has been obtained. . Count II dealt with the indemnification of attorneys’ fees if Coates & Dorsey was successful in the negligence action and is not at issue here. . In Giannone v. United States Steel Corporation, 3 Cir., 1956, 238 F.2d 544, 547-548, the court noted : * * * Authorities rarely articulate what we believe to be a conflict between the admissions through pleading rule and Rule 8(e) (2) of the Federal Rules of Civil Procedure, 28 U.S.C., which allows inconsistent, alternative and hypothetical pleading. The rules encourage parties to plead not" }, { "docid": "16692934", "title": "", "text": "substantial rights were likely not affected by the admission of the challenged excerpts. We therefore determine that the judgments against appellants must be reversed and remanded for a new trial. Conclusion Accordingly, the judgments against appellants are reversed, and each of the causes is remanded for a new trial. REVERSED and REMANDED. . Two other actions were also consolidated with these five actions, but in those actions the parties settled. Accordingly, those two actions are not involved in this appeal. . In objecting to the admission of this excerpt in evidence, Armstrong advised the court that its remarks concerning the excerpt from the Ray-mark brief were equally applicable to this excerpt, namely, that the excerpt was hearsay and thus inadmissible. . At the time that these two excerpts were offered in evidence, there had been no testimony by any declarant of the statements contained in these two excerpts, which is a prerequisite to the exercise of Rule 801(d)(1)(A). . It seems plain that under no theory could it be argued that the Raymark brief excerpt was admissible against any of the defendant-appellants other than Raymark, or that the Keene brief excerpt was admissible against any of the defendants-appellants other than Keene. However, this ground of objection was not urged below (nor was any limiting instruction requested), and it has not been urged on appeal. Thus we regard it as waived and we treat the matter as if the briefs in question were filed by all defendants (which is substantially the way the objections were made below and have been urged on appeal). .There are some important exceptions to this rule. For example, when \"inconsistent positions [are] taken in pleadings in a complicated joinder situation, involving ... the contingent liability of third parties, such pleadings may not be used as evidentiary admissions.” Continental Insurance Company of New York v. Sherman, 439 F.2d 1294, 1298 (5th Cir.1971). See also Douglas Equipment, Inc. v. Mack Trucks, Inc., 471 F.2d 222, 224-25 (7th Cir.1972). . Armstrong presented medical evidence that at least one plaintiff did not have asbestosis and that the conditions of the" }, { "docid": "887198", "title": "", "text": "place a litigant at his peril in exercising the liberal pleading and joinder provisions of the Federal Rules of Procedure in that inconsistent pleadings under Rule 8(e) (2) could be used, in the proper circumstances, as admissions negating each other and the allegations in third-party complaints and cross-claims seeking recovery over in the event of liability in the principal action could be used in that action as admissions establishing liability. Thus, as a necessary exception to the general rule, there is ample authority that one of two inconsistent pleas cannot be used as evidence in the trial of the other. Giannone v. United States Steel Corporation, supra, 238 F.2d at 544, n. 4; McCormick on Evidence, § 242, pp. 509-510 (1954); Note, 17 Tex. Law Rev. 191 (1939). It would seem that this principle would also include inconsistent positions taken in pleadings in a complicated joinder situation, involving, as here, the contingent liability of third parties. See Hines v. Trager Construction Co., Fla.Dist.Ct.App., 1966, 188 So.2d 826, 829, cert. den. Fla., 194 So.2d 618. The cross-claim at issue here asserts a claim, in the nature of a third-party claim, seeking recovery over against Continental by way of indemnity in the event Coates & Dorsey fails to prevail in the negligence action. Accordingly, the pleading assumed the truth of Sherman’s allegations against Coates & Dorsey as a necessary predicate in establishing Continental’s duty to indemnify. Coates & Dorsey was thus required, at least implicitly, to take a position inconsistent with its position in the negligence action. To allow the jury to make adverse inferences from this would defeat much of the salutary effect of the flexible joinder provisions of the federal rules. Accordingly, we hold that it was prejudicial error, necessitating a new trial, to admit' as an admission Coates & Dorsey’s cross-claim against Continental. This error was further compounded when counsel was allowed to suggest to the jury that the appeal from the cross-claim would be successful and that Continental would ultimately bear the cost of any resulting judgment. See McCormick on Evidence, § 152, p. 319 (1954); Rule 4-03," }, { "docid": "13016972", "title": "", "text": "the relevant law, we reverse and remand the matter for reinstatement of that count. II. APPLICABILITY OF THE FERES DOCTRINE A. Appellant’s Inconsistent Averments As a threshold matter, we note that the district court erred in construing count two of appellant’s complaint as an admission against count one and in concluding that count one was therefore barred by Feres. Indeed, to permit such a construction would undermine the clear intent of the Federal Rules of Civil Procedure, which explicitly authorize litigants to present alternative and inconsistent pleadings. Pursuant to Rule 8(e)(2), “[a] party may set forth two or more statements of a claim or defense alternatively or hypothetically.” The Rule further provides that “[a] party may also state as many separate claims or defenses as he has regardless of consisten cy.” Id. Clearly, a policy which permits one claim to be invoked as an admission against an alternative or inconsistent claim would significantly restrict, if not eliminate, the freedom to plead inconsistent claims provided by Rule 8(e)(2). Thus, courts have been reluctant to permit one pleading to be read as a judicial or evidentiary admission against an alternative or inconsistent pleading. See Douglas Equipment, Inc. v. Mack Trucks, Inc., 471 F.2d 222 (7th Cir.1972); Continental Insurance Co. v. Sherman, 439 F.2d 1294 (5th Cir.1971); Giannone v. United States Steel Corp., 238 F.2d 544 (3d Cir.1956); McCormick, Evidence § 265 (2nd ed. 1972). Cf. Ryan v. Foster and Marshall, 556 F.2d 460, 463 (9th Cir.1977) (plaintiffs’ assertion of inconsistent and alternative claims may not be construed as a waiver by plaintiffs of their rights to recovery under either claim). In light of the liberal pleading policy embodied in Rule 8(e)(2), we hold that a pleading should not be construed as an admission against another alternative or inconsistent pleading in the same case under the circumstances present here. Shipek v. United States, 752 F.2d 1352, 1356 (9th Cir.1985). Thus, in this case, the district court should have examined counts one and two of appellant’s complaint independently. Properly anaylzed, count one of appellant’s complaint alleges that subsequent to Mr. Molsbergen’s discharge, the government" }, { "docid": "3803248", "title": "", "text": "clear that the grounds which they now urge for admission of the testimony are both for impeachment and as an admission against interest. The first matter to be determined is whether the form of offer was such as to call the attention of the trial court to the purpose thereof. The offer was made during cross-examination of John H. Larkin. What then took place is set forth in the footnote. We think this shows that both impeachment and admission against interest were sufficiently brought to the attention of the court to make the action of the court reviewable here. This allegation in the petitions is certainly opposed to testimony theretofore given by this witness as to the movements and slackening of speed of the Smith car. Also, this allegation would plausibly fit into the theory of appellants as to how the accident occurred. Therefore, the evidence was material and, if its exclusion erroneous, it was prejudicial.. That statements in pleadings in the nature of admissions against interest are admissible is established not only in federal courts (Darling Shops of Tennessee v. Brack, 8 Cir., 95 F.2d 135, 141) and in Minnesota (Bakkensen v. Railway Co., 184 Minn. 274, 238 N.W. 489, 490; Carpenter v. Tri-State T. & T. Co., 169 Minn. 287, 289, 211 N.W. 463, 464; Vogel v. Osborne & Co., 32 Minn. 167, 20 N.W. 129), but generally (20 Am.Jur. 532, Sec. 630; Annotations in 14 A.L.R. 22 and 90 A.L.R. 1393). In this respect the Bakkensen case, supra, seems particularly apposite because there ■ the pleading offered had to do with statement in a cause of action against both the operator of a street car and the operator of an automobile where, upon death of the automobile driver, a new action was filed against the street car operator alone and in the second action the former pleading was introduced. Here, plaintiff stated a cause against the drivers of two automobiles but on trial virtually abandoned the action against one driver (Smith) and a verdict was directed for that defendant. Appellees urge various reasons why the exclusion of" }, { "docid": "14132773", "title": "", "text": "law. Because they would dispose of the only liability issue between Metro and Slate, the “judicial admissions” would be conclusive to award Metro judgment on the pleadings as to liability. But that argument runs head on into our Court of Appeals’ recent opinion in Enquip, Inc. v. Smith-McDonald Corp., 655 F.2d 115 (7th Cir. 1981). Enquip’s factual situation was substantively indistinguishable from ours: Smith-McDonald sued Gardner Construction Co. (“Gardner”) in federal court. In its counterclaim against Smith-McDonald, Gardner claimed that oil separator tanks supplied by Enquip did not meet specifications. In Gardner’s separate state court lawsuit against the Illinois State Toll Highway Authority and its architect-engineer, Gardner alleged that the tanks did meet the specifications. Smith-McDonald moved for summary judgment against Gardner in federal court, citing Gardner’s pleading in the state court action. In reversing the District Court’s grant of summary judgment, the Court of Appeals stated the applicable law (655 F.2d at 118, emphasis added): It is well established in this circuit and elsewhere that such matter from one proceeding is indeed admissible and cognizable as an admission in another, [citations omitted] Furthermore, the trial court properly ruled that while such evidence was admissible it was not a judicial admission, and thus not binding or conclusive. [citations omitted] One of Slate’s pleadings — its affirmative defense in 80 C 6038 — was in a lawsuit other than this one, so that Enquip is on all fours. As for the other — Slate’s now-withdrawn third-party complaint against Allied in this action — Enquip confirms that the same principle applies (id.): Such an opportunity [to explain the purported admission to demonstrate that there is an issue of material fact] is particularly necessary in a complex third-party situation such as this one where claims pleaded in the alternative are sought to be used as admissions. See Continental Insurance Co. v. Sherman, 439 F.2d 1294, 1298 (5th Cir. 1971) (prejudicial error to allow a third-party cross claim to be used as an admission in the same suit). In Continental Insurance the Court of Appeals for the Fifth Circuit held it prejudicial error to" }, { "docid": "18007214", "title": "", "text": "F.2d 1371 (11th Cir.1982). The federal district court, therefore, had to determine the state in which the cause of action originated, that being the substantive law that a Georgia court would follow in this tort action. Ploof alleged in its pleadings that the cause of action arose in Georgia. Specifically, its third party complaint/counterclaim against Norton stipulated, “This court has jurisdiction and venue of this claim asserted herein against Farrington Texal, Division of Norton Company ... as this action is an ancillary claim and is brought in the judicial district in which the cause of action arises.” Record at 8, (emphasis added). Ploof’s first amended third party complaint/counterclaim contained the same express statement. Record at 68. In response, Norton, while denying liability, admitted that such claims, if any, arose in Georgia. The district court held that Ploof was bound by its own judicial admission. Record at 624. As a result, Ploof could not maintain its counterclaim under Georgia law, and the court correctly granted summary judgment to Norton. Id. This conclusion is consistent with the general rule that a party is bound by the admissions in his pleadings. See State Farm Mutual Automobile Ins. Co. v. Worthington, 405 F.2d 683, 686 (8th Cir.1968); Giannone v. United States Steel Corp., 238 F.2d 544, 547 (3d Cir.1956); Hill v. FTC, 124 F.2d 104, 106 (5th Cir.1941). See also, Seven-Up Bottling Co. v. Seven-Up Co., 420 F.Supp. 1246, 1250-51 (E.D.Mo.1976), aff’d 561 F.2d 1275 (8th Cir.1977); Consolidated Rail Corp. v. Providence & Worcester Co., 540 F.Supp. 1210, 1220 (D.Dela.1982); Giles v. St. Paul Fire & Marine Insurance Co., 405 F.Supp. 719, 725 n. 2 (N.D.Ala.1975). In Hill v. FTC, the Court of Appeals for the Fifth Circuit stated, “judicial admissions are proof possessing the highest possible probative value. Indeed, facts judicially admitted are facts established not only beyond the need of evidence to prove them, but beyond the power of evidence to controvert them.” Id. 124 F.2d at 106. See also, Holiday Inns, Inc. v. Alberding, 683 F.2d 931, 935 (11th Cir.1982) (where the court held that in a dispute over “defendant’s profits,”" }, { "docid": "9436297", "title": "", "text": "In Kelley, the plaintiff filed a Family and Medical Leave Act (FMLA) action against his employer. He alleged in his complaint that he had been fired because he took leave from work to “obtain custody of [his] kids.” Id. at 1203. The employer filed a Rule 12(b)(6) motion to dismiss, arguing that seeking custody of one’s own children was not covered by the FMLA. Id. The plaintiff later filed an amended complaint that omitted that assertion. Id. The employer again moved to dismiss, arguing that the admissions contained in the original complaint were binding. Id. at 1203-04. The district court granted the motion. Id. at 1204. The Seventh Circuit reversed. It first noted that “[i]t is well-established that an amended pleading supersedes the original pleading; facts not incorporated into the amended pleading are considered functus officio.” Id. It then explained that “[i]f certain facts or admissions from the original complaint become functus officio, they cannot be considered by the court on a motion to dismiss the amended complaint. A court cannot resuscitate these facts when assessing whether the amended complaint states a viable claim.” Id. at 1205. Applying these principles, the court concluded: Any facts that Kelley had pleaded in his first two complaints were effectively nullified for 12(b)(6) purposes when he filed his Second Amended Complaint, which did not reference those facts. There was no longer any “confession” in the pleadings on which the district court could rely when reviewing Crosfield’s motion to dismiss the Second Amended Complaint. Id. This approach is consistent with how other courts of appeals have treated the issue. See, e.g., InterGen, 344 F.3d at 144-45; Huey, 82 F.3d at 333; Hibernia Nat’l Bank, 997 F.2d at 101. This is not to say, however, that a party’s assertion of contrary factual positions in the pleadings is without consequence. A superseded pleading may be offered as evidence rebutting a subsequent contrary assertion. See Giannone, 238 F.2d at 547; see also InterGen, 344 F.3d at 144-45; 188 LLC, 300 F.3d at 736; Huey, 82 F.3d at 333; Andrews v. Metro N. Commuter R.R. Co., 882 F.2d 705," }, { "docid": "18007215", "title": "", "text": "general rule that a party is bound by the admissions in his pleadings. See State Farm Mutual Automobile Ins. Co. v. Worthington, 405 F.2d 683, 686 (8th Cir.1968); Giannone v. United States Steel Corp., 238 F.2d 544, 547 (3d Cir.1956); Hill v. FTC, 124 F.2d 104, 106 (5th Cir.1941). See also, Seven-Up Bottling Co. v. Seven-Up Co., 420 F.Supp. 1246, 1250-51 (E.D.Mo.1976), aff’d 561 F.2d 1275 (8th Cir.1977); Consolidated Rail Corp. v. Providence & Worcester Co., 540 F.Supp. 1210, 1220 (D.Dela.1982); Giles v. St. Paul Fire & Marine Insurance Co., 405 F.Supp. 719, 725 n. 2 (N.D.Ala.1975). In Hill v. FTC, the Court of Appeals for the Fifth Circuit stated, “judicial admissions are proof possessing the highest possible probative value. Indeed, facts judicially admitted are facts established not only beyond the need of evidence to prove them, but beyond the power of evidence to controvert them.” Id. 124 F.2d at 106. See also, Holiday Inns, Inc. v. Alberding, 683 F.2d 931, 935 (11th Cir.1982) (where the court held that in a dispute over “defendant’s profits,” a party was bound by its pretrial agreement stipulating its profits as “a defendant.”) Ploof’s admission in its pleadings is binding and conclusive to establish that the cause of action arose in Georgia. Even though this judicial admission is sufficient reason to apply Georgia law, an analysis of Georgia’s choice of law approach also supports the same result. Georgia follows the traditional rule that in tort actions, the law of the place of the injury — or lex loci delicti —governs the resolution of the substantive issues. Ohio Southern Express Co. v. Beeler, 110 Ga.App. 867, 868, 140 S.E.2d 235 (1965). Therefore, the court must determine the place “where the last act necessary to make an actor liable for an alleged tort [took] place.” Cash v. Armco Steel Corp., 462 F.Supp. 272, 274 (N.D.Ga.1978), quoting Orr v. Sassaman, 239 F.2d 182, 186 (5th Cir.1957). See also, Whitaker v. Harvell-Kil gore Corp., 418 F.2d 1010 (5th Cir.1969). Here, it is almost impossible to ascertain the location of the “last event” because the water damage occurred during" }, { "docid": "887197", "title": "", "text": "of liability on the part of Coates & Dorsey and strongly intimating that although the cross-claim against Continental had been dismissed, Coates & Dorsey would ultimately prevail, so that if the jury returned a verdict against Coates & Dorsey the cost of the judgment would be passed on to Continental. As a general rule the pleading of a party made in another action, as well as pleadings in the same action which have been superseded by amendment, withdrawn or dismissed, are admissible as admissions of the pleading party to the facts alleged therein, assuming of course that the usual tests of relevancy are met. Raulie v. United States, 10 Cir., 1968, 400 F.2d 487; Ross v. Philip Morris & Company, 8 Cir., 1964, 328 F.2d 3; Great American Indemnity Company v. Rose, 5 Cir., 1957, 242 F.2d 269; Borel v. United States Casualty Company, 5 Cir., 1956, 233 F.2d 385; Fuller v. King, 6 Cir., 1954, 204 F.2d 586. See Rule 8-04(b) (4), Proposed Federal Rules of Evidence (1969). Strictly applied, however, this rule would place a litigant at his peril in exercising the liberal pleading and joinder provisions of the Federal Rules of Procedure in that inconsistent pleadings under Rule 8(e) (2) could be used, in the proper circumstances, as admissions negating each other and the allegations in third-party complaints and cross-claims seeking recovery over in the event of liability in the principal action could be used in that action as admissions establishing liability. Thus, as a necessary exception to the general rule, there is ample authority that one of two inconsistent pleas cannot be used as evidence in the trial of the other. Giannone v. United States Steel Corporation, supra, 238 F.2d at 544, n. 4; McCormick on Evidence, § 242, pp. 509-510 (1954); Note, 17 Tex. Law Rev. 191 (1939). It would seem that this principle would also include inconsistent positions taken in pleadings in a complicated joinder situation, involving, as here, the contingent liability of third parties. See Hines v. Trager Construction Co., Fla.Dist.Ct.App., 1966, 188 So.2d 826, 829, cert. den. Fla., 194 So.2d 618. The" }, { "docid": "19063424", "title": "", "text": "eliminated in the amended cross-petition is immaterial, for pleadings withdrawn or superseded by amended pleadings are admissions against the pleader in the action in which they were filed. 14 A.L.R. 65-72, and cases cited. Assuming but not deciding that the city could not avail itself of these admissions since it did not introduce the original cross-petition in evidence (14 A.L.R. 89), we take judicial notice of them as part of the record. Bienville Water Supply Co. v. City of Mobile, 186 U.S. 212, 217, 22 S.Ct. 820, 46 L.Ed. 1132; De Bearn v. Safe Deposit & Trust Co., supra. The underpass erected by the railroad in conformity to Section 13 of the ordinance authorized the railroad company “to complete the structure to separate grades at Mill Street.” The structures constructed both at Mill Street and at Walnut Street were underpasses and thus the access from Byers Avenue to Mill Street, which had existed at least since 1907, was retained when the railroad tracks were elevated. While the railroad in its supplemental brief contends that it owns the underpass, there is no evidence supporting this contention. The railroad in its pleadings does not aver ownership of the land. It states that it owns and operates certain railroad tracks, cars, locomotives, and equipment through the city of Girard parallel with Byers Avenue. The evidence on this point indicates that the Pennsylvania Railroad has a right of way parallel with Byers Avenue. The maps introduced by appellant contribute little to the definite solution of the problem. One of them is a fragment. None of the maps show ownership of the land by the appellant. Exhibit Y is merely an inter-company agreement embodying a plan of construction between appellant and the Brier Hill Steel Company which is not shown to have gone into effect, at least in toto. The trial court found that there had been no statutory dedication of the underpass, but held that a common-law dedication of the crossing and the underpass was shown. This finding of fact is supported by the evidence and binds us here. Moreover, the appellant, which was" }, { "docid": "3803249", "title": "", "text": "courts (Darling Shops of Tennessee v. Brack, 8 Cir., 95 F.2d 135, 141) and in Minnesota (Bakkensen v. Railway Co., 184 Minn. 274, 238 N.W. 489, 490; Carpenter v. Tri-State T. & T. Co., 169 Minn. 287, 289, 211 N.W. 463, 464; Vogel v. Osborne & Co., 32 Minn. 167, 20 N.W. 129), but generally (20 Am.Jur. 532, Sec. 630; Annotations in 14 A.L.R. 22 and 90 A.L.R. 1393). In this respect the Bakkensen case, supra, seems particularly apposite because there ■ the pleading offered had to do with statement in a cause of action against both the operator of a street car and the operator of an automobile where, upon death of the automobile driver, a new action was filed against the street car operator alone and in the second action the former pleading was introduced. Here, plaintiff stated a cause against the drivers of two automobiles but on trial virtually abandoned the action against one driver (Smith) and a verdict was directed for that defendant. Appellees urge various reasons why the exclusion of this evidence was not error. We have examined each of them. We find no merit in any of them and see no useful purpose in discussing them in this opinion for such exclusion is clearly error. To avoid misapprehension on retrial, it is advisable to state the scope and effect of this evidence. There are admissions in pleadings which are conclusively binding upon the party making them. There are other such admissions of milder character which are not conclusive but which are proper evidence as constituting statements against interest. The latter class of admissions in pleadings occupies the same place in a trial as other admissions against interest no matter how made. The admission involved here is of this latter class. We deem it unnecessary to discuss the considerations which differentiate these two classes of admissions because appellants properly and wisely concede that such is .the character of this admission — that it is simply “competent and cogent evidence” against appellee. What has been said as to the error in excluding this evidence applies to" }, { "docid": "13016973", "title": "", "text": "pleading to be read as a judicial or evidentiary admission against an alternative or inconsistent pleading. See Douglas Equipment, Inc. v. Mack Trucks, Inc., 471 F.2d 222 (7th Cir.1972); Continental Insurance Co. v. Sherman, 439 F.2d 1294 (5th Cir.1971); Giannone v. United States Steel Corp., 238 F.2d 544 (3d Cir.1956); McCormick, Evidence § 265 (2nd ed. 1972). Cf. Ryan v. Foster and Marshall, 556 F.2d 460, 463 (9th Cir.1977) (plaintiffs’ assertion of inconsistent and alternative claims may not be construed as a waiver by plaintiffs of their rights to recovery under either claim). In light of the liberal pleading policy embodied in Rule 8(e)(2), we hold that a pleading should not be construed as an admission against another alternative or inconsistent pleading in the same case under the circumstances present here. Shipek v. United States, 752 F.2d 1352, 1356 (9th Cir.1985). Thus, in this case, the district court should have examined counts one and two of appellant’s complaint independently. Properly anaylzed, count one of appellant’s complaint alleges that subsequent to Mr. Molsbergen’s discharge, the government learned of a risk to which it had exposed Mr. Molsbergen and negligently failed to warn him of prospective harm. B. Applicability of Feres to Appellant’s Allegation of Post-Discharge Negligence In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court held that “the Government is not liable for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Id. at 146. However, as we have previously held, Feres does not bar a claim for a post-discharge failure to warn. In Broudy v. United States, 661 F.2d 125 (9th Cir.1981) (“Broudy I”), this court addressed an issue identical to that raised by appellant in count one of her complaint. At issue in Broudy I was the validity of a cause of action under the FTCA for post-discharge injuries sustained by a former member of the armed forces as a result of his exposure to radiation while on active duty. Although we concluded that a claim predicated on the government’s" }, { "docid": "2615702", "title": "", "text": "amend their complaint by eliminating the allegation that the boys were walking along the edge of the open sewer trench which suddenly gave away causing Pat to fall in the trench. The amended complaint alleged instead that the boys were walking inside the open trench when suddenly and with no warning the side of one bank caved in on top of Pat Shell. The allegations of the original complaint constituted an admission against interest, but defendants did not offer that complaint in evidence. Where a pleading has been amended or superseded by another pleading, it is necessary that a party offer in evidence the original or superseded pleading if he desires to make use of an admission therein contained. Raulie v. United States, 400 F.2d 487, 526 (10th Cir. 1968); Giannone v. United States Steel Corp., 238 F.2d 544, 547 (3d Cir. 1956); Borel v. United States Cas. Co., 233 F.2d 385, 387-388 (5th Cir. 1956); 4 Wigmore on Evidence, § 1067; 31A C.J.S. Evidence § 304; 29 Am.Jur.2d Evidence §§ 693, 688. While we have on one occasion on appeal taken judicial notice of a superseded pleading, Pennsylvania R. R. v. City of Girard, 210 F.2d 437 (6th Cir. 1954), Contra, Borel v. United States Cas. Co., supra, we think the better rule is against such practice. Cordova contends that the District Court erred in excluding from the Certificate of Death, which it offered in evidence, the words “Victim fell in open ditch.” The District Court excluded the language from the certificate because the physician who signed it had obtained that information from investigating officers and because Pat’s companion, Steven Giakis, had given testimony which “overwhelmingly refutes it” [that information] . Tennessee statute provides : “Each certificate provided for in this chapter, filed within six (6) months after the recorded event occurred, shall be prima facie evidence of the facts therein stated. * * * ” T.C.A. § 53-413. The question whether the evidence of the Giakis boy was sufficient to rebut the prima facie evidence provided by the Certificate of Death was for the jury, and not the" }, { "docid": "14132774", "title": "", "text": "cognizable as an admission in another, [citations omitted] Furthermore, the trial court properly ruled that while such evidence was admissible it was not a judicial admission, and thus not binding or conclusive. [citations omitted] One of Slate’s pleadings — its affirmative defense in 80 C 6038 — was in a lawsuit other than this one, so that Enquip is on all fours. As for the other — Slate’s now-withdrawn third-party complaint against Allied in this action — Enquip confirms that the same principle applies (id.): Such an opportunity [to explain the purported admission to demonstrate that there is an issue of material fact] is particularly necessary in a complex third-party situation such as this one where claims pleaded in the alternative are sought to be used as admissions. See Continental Insurance Co. v. Sherman, 439 F.2d 1294, 1298 (5th Cir. 1971) (prejudicial error to allow a third-party cross claim to be used as an admission in the same suit). In Continental Insurance the Court of Appeals for the Fifth Circuit held it prejudicial error to allow a third-party cross-claim to be used as an admission in the same suit (439 F.2d at 1298): Strictly applied, however, this rule would place a litigant at his peril in exercising the liberal pleading and joinder provisions of the Federal Rules of Civil Procedure in that inconsistent pleadings under Rule 8(e)(2) could be used, in the proper circumstances, as admissions negating each other and the allegations in third-party complaints and cross-claims seeking recovery over in the event of liability in the principal action could be used in that action as admissions establishing liability. Rule 8(e)(2) is clearly implicated by the rule allowing an inconsistent pleading to be an admission in the same case, at least in the context of three-party disputes. And there is no magic, as Metro would have it, in a party’s having to label its inconsistent pleadings “alternative” or “hypothetical” to invoke the principle underlying the Rule. Enquip establishes that when Slate, in a separate action, engaged in the inconsistent pleading presented here, such inconsistency has become admissible against Slate, but" }, { "docid": "9436294", "title": "", "text": "those decisions involved the question of whether a plaintiff could amend a complaint to cure a purported factual mistake. In Sovereign Bank, a party attempted to take a legal position on appeal that was contradicted by an allegation in its complaint, and we held that the allegation was a binding judicial admission. See Sovereign Bank, 533 F.3d at 181. In Parilla, we denied the appellee’s motion to dismiss an appeal for lack of standing because, inter alia, factual concessions in her own complaint revealed the basis for appellants’ standing. See Parilla, 368 F.3d at 275. Even if Plaintiffs’ allegations in the original complaint constituted judicial admissions, it does not follow that they may not amend them. This Court and several of our sister courts have recognized that judicial admissions may be withdrawn by amendment. See Giannone v. U.S. Steel Corp., 238 F.2d 544, 547 (3d Cir.1956) (recognizing that “withdrawn or superseded pleadings” do not constitute judicial admissions); see also, e.g., InterGen N.V. v. Grina, 344 F.3d 134, 144-45 (1st Cir.2003) (“An amended complaint supersedes the original complaint, and facts that are neither repeated nor otherwise incorporated into the amended complaint no longer bind the pleader.”); 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 736 (7th Cir.2002) (“When a party has amended a pleading, allegations and statements in earlier pleadings are not considered judicial admissions.”); Huey v. Honeywell, Inc., 82 F.3d 327, 333 (9th Cir.1996) (“When a pleading is amended or withdrawn, the superseded portion ceases to be a conclusive judicial admission....” (citation and internal quotation marks omitted)); Hibernia Nat’l Bank v. Carner, 997 F.2d 94, 101 (5th Cir.1993) (“To the extent that Hibernia did make a ‘judicial confession[ ]’ [in its original complaint,] that confession was amended away.” (citations omitted)). Indeed, effectively disallowing amendment by looking to the original pleading is contrary to the liberal amendment policy embodied in Rule 15. Nor was dismissal warranted because Plaintiffs sought to “take a contrary position ... to avoid dismissal.” W. Run, 2012 WL 1739820, at *6. Plaintiffs routinely amend complaints to correct factual inadequacies in response to a motion to dismiss." }, { "docid": "9436293", "title": "", "text": "v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir.1985)). This approach “ensures that a particular claim will be decided on the merits rather than on technicalities.” Dole v. Arco Chem. Co., 921 F.2d 484, 487 (3d Cir.1990); see also 6 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1474 (3d ed.2008) (“A liberal policy toward allowing amendments to correct errors in the pleadings clearly is desirable and furthers one of the basic objectives of the federal rules — the determination of cases on their merits.”). Although the District Court acknowledged these principles, it reasoned that “a plaintiff is not permitted to take a contrary position in a complaint in order to avoid dismissal.” W. Run, 2012 WL 1739820, at *6. The District Court relied on two of our decisions for this proposition: Sovereign Bank v. BJ’s Wholesale Club, Inc., 533 F.3d 162, 181 (3d Cir.2008), and Parilla v. IAP Worldwide Servs. VI, Inc., 368 F.3d 269, 275 (3d Cir.2004). See W. Run, 2012 WL 1739820, at *6. But neither of those decisions involved the question of whether a plaintiff could amend a complaint to cure a purported factual mistake. In Sovereign Bank, a party attempted to take a legal position on appeal that was contradicted by an allegation in its complaint, and we held that the allegation was a binding judicial admission. See Sovereign Bank, 533 F.3d at 181. In Parilla, we denied the appellee’s motion to dismiss an appeal for lack of standing because, inter alia, factual concessions in her own complaint revealed the basis for appellants’ standing. See Parilla, 368 F.3d at 275. Even if Plaintiffs’ allegations in the original complaint constituted judicial admissions, it does not follow that they may not amend them. This Court and several of our sister courts have recognized that judicial admissions may be withdrawn by amendment. See Giannone v. U.S. Steel Corp., 238 F.2d 544, 547 (3d Cir.1956) (recognizing that “withdrawn or superseded pleadings” do not constitute judicial admissions); see also, e.g., InterGen N.V. v. Grina, 344 F.3d 134, 144-45 (1st Cir.2003) (“An amended complaint supersedes the" }, { "docid": "5036942", "title": "", "text": "case a proximate rather than a remote cause of the plaintiff’s injury. 18. The predecessor statute to M.C.A. § 61-8-401 (R.C.M.1947, § 32-2142), was in full force and effect on December 12 and 13,1975. The statute provided in pertinent part that if there is, at the time a person is operating a motor vehicle, 0.10% or more by weight of alcohol in the driver’s blood, it shall be presumed that the driver was under the influence of alcohol. 19. Timothy Hay was negligent in driving his car while under the influence of alcohol. Timothy Hay’s intoxication was a proximate rather than a remote cause of the automobile accident in which plaintiff Freddie Johnson was severely injured. 20. The negligence of Timothy Hay in losing control of his motor vehicle and operating his motor, vehicle while under the influence of alcohol, was not a superseding, intervening cause of the injury to the plaintiff. Hay’s conduct was a foreseeable intervening cause and therefore does not cut off liability to the plaintiffs. Deeds, supra; §§ 442, 443, 444 and 435, Restatement of Torts, 2d. 21. Defendant pleaded the affirmative defense of assumption of risk. Under Montana law, assumption of risk is to be treated like any other form of contributory negligence and apportioned under the Montana Comparative Negligence Statute. Kopsihke v. First Continental Corp., Mont., 610 P.2d 668, 37 St.Rptr. 437, 462 (1980). 22. Plaintiff Freddie Johnson did assume the risk of injuries when he agreed to ride in the automobile with Sergeant Hay, a man he felt to be intoxicated and an unsafe driver. 23. Plaintiff Freddie Johnson’s assumption of risk was a 25% causative factor of his damages, defendant’s negligence was a 35% causative factor of plaintiff’s damages; Sergeant Timothy Hay’s negligence was a 40% causative factor of plaintiff’s damages. Damages cannot be apportioned against Sergeant Hay, however, since he is not a defendant in this action and has been dismissed with prejudice as a third-party defendant upon the motion of defendant and third-party plaintiff United States. 24. Any damages allowed plaintiff Freddie Johnson against defendant United States in a subsequent" }, { "docid": "2615701", "title": "", "text": "in Dirt was piled on both sides of the trench. On the day of the accident no men were working at the trench because it had rained previously and the ground was too wet. The original complaint alleged that Louis Pat Shell, in company with another boy, was playing in the area of the open trenches. It further alleged: “The boys were walking along the edge of an open sewer trench when the edge where Louis Pat Shell was walking suddenly gave away and he fell in the trench with the side of the trench caving in on top of him. * * * [A] nd he died from suffocation * It was the claim of plaintiffs that the area had been used by children as a playground; that it also constituted an attractive nuisance; that the boys were not trespassers; and that the defendants were negligent in leaving the trenches open and unguarded, in not filling them with earth or properly shoring them. At the commencement of the trial, plaintiffs were granted leave to amend their complaint by eliminating the allegation that the boys were walking along the edge of the open sewer trench which suddenly gave away causing Pat to fall in the trench. The amended complaint alleged instead that the boys were walking inside the open trench when suddenly and with no warning the side of one bank caved in on top of Pat Shell. The allegations of the original complaint constituted an admission against interest, but defendants did not offer that complaint in evidence. Where a pleading has been amended or superseded by another pleading, it is necessary that a party offer in evidence the original or superseded pleading if he desires to make use of an admission therein contained. Raulie v. United States, 400 F.2d 487, 526 (10th Cir. 1968); Giannone v. United States Steel Corp., 238 F.2d 544, 547 (3d Cir. 1956); Borel v. United States Cas. Co., 233 F.2d 385, 387-388 (5th Cir. 1956); 4 Wigmore on Evidence, § 1067; 31A C.J.S. Evidence § 304; 29 Am.Jur.2d Evidence §§ 693, 688. While we" }, { "docid": "887196", "title": "", "text": "the consideration for its use, including the fact that the party using the boat would pay for the insurance premium, would pay approximately $400.00 or $500.00 to make the boat seaworthy, and that the boat would be used for ornithological research; that all facts which were communicated to COATES & DORSEY, INC., were in turn communicated by COATES & DORSEY, INC., to CONTINENTAL INSURANCE COMPANY OF NEW YORK; that CONTINENTAL INSURANCE COMPANY OF NEW YORK, having actual knowledge that the aforesaid consideration would be paid for the use of the “Penida”, did nevertheless authorize COATES & DORSEY, INC., to countersign and deliver unto ROBERT SHERMAN its insurance policy which is the subject matter of the original Complaint, the Counterclaim, and the Third Party Claim filed in this cause. (Emphasis supplied.) The amended cross-claim was introduced into evidence by Sherman over Coates & Dorsey’s objection, and Sherman’s attorney relied heavily on the inconsistency between the allegations of the third-party answer and the cross-claim in closing argument, arguing that the allegations of the cross-claim constituted an admission of liability on the part of Coates & Dorsey and strongly intimating that although the cross-claim against Continental had been dismissed, Coates & Dorsey would ultimately prevail, so that if the jury returned a verdict against Coates & Dorsey the cost of the judgment would be passed on to Continental. As a general rule the pleading of a party made in another action, as well as pleadings in the same action which have been superseded by amendment, withdrawn or dismissed, are admissible as admissions of the pleading party to the facts alleged therein, assuming of course that the usual tests of relevancy are met. Raulie v. United States, 10 Cir., 1968, 400 F.2d 487; Ross v. Philip Morris & Company, 8 Cir., 1964, 328 F.2d 3; Great American Indemnity Company v. Rose, 5 Cir., 1957, 242 F.2d 269; Borel v. United States Casualty Company, 5 Cir., 1956, 233 F.2d 385; Fuller v. King, 6 Cir., 1954, 204 F.2d 586. See Rule 8-04(b) (4), Proposed Federal Rules of Evidence (1969). Strictly applied, however, this rule would" } ]

[ { "docid": "5439669", "title": "", "text": "basis of statutory -authority .... is largely discretionary with the judge, who is in the best position to determine how much time was reasonably spent on a case, and the fair value of the attorney’s services.”). The starting point for such an analysis is the now-familiar “lode-star” calculation. See Stowe v. Bologna, 417 Mass. 199, 203, 629 N.E.2d 304, 307 (1994) (“The basic measure of reasonable attorney’s fees is a ‘fair market rate for the time reasonably spent preparing and litigating a case.’ ”) (quoting Fontaine, 415 Mass. at 326, 613 N.E.2d at 891). “Fair market rate” is the “reasonable hourly rate of compensation prevailing in the relevant community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” McLaughlin, 976 F.Supp. at 60. Berger’s affidavit asserts that his usual and customary hourly rate for legal services is $200.00 per hour. See Berger Aff. at 1. This figure lies within the range of rates for attorneys with his experience in Southeastern Massachusetts, which Berger reckons to be between $175.00 and $250.00 per hour. See id. As pointed out in Berger’s affidavit, the hourly rate of $200.00 for an attorney with over twenty-five years of membership in the Massachusetts Bar Association is likely to be on the thrifty side of rates for comparable attorneys in Boston, the place\" where litigation occurred. See id.; see also Guckenberger v. Boston Univ., 8 F.Supp.2d 91, 105 (D.Mass.1998) (Saris, J.) (finding rates for “partners in trial firms with experience in civil rights cases [to be] between $200 and $275 per hour” and noting that “[rjates in excess of $300 per hour for Boston trial attorneys ... have been approved in this District”). In light of these comparisons, the Court, like Harrelson, sees no reason to challenge Connolly and Adao’s proffered figure of $200.00 per hour for Berger’s counsel. With respect to hours billed, “[t]he judge should begin his inquiry with the amount of time documented by the plaintiffs attorney.” Stowe, 417 Mass. at 203, 629 N.E.2d at 307. Berger provides in his affidavit a log detailing 355.70 hours of his own time, as" } ]

[ { "docid": "7130460", "title": "", "text": "was actually paid to the law student. See Martinez v. Hodgson, 265 F.Supp.2d 135 (D.Mass.2003) (awarding $60.00 per hour as an appropriate rate for an unidentified number of law students in a civil rights suit). But cf. McLaughlin by McLaughlin v. Boston School Comm., 976 F.Supp. 53, 67 (D.Mass.1997) (Garrity, J.) (holding “[w]here a plaintiff applies for fees for work performed by non-lawyers, any award for this work is limited to the amount of money actually paid to them”). Taking into account the rates awarded to paralegals in the Boston area recently and the substantive nature and amount of work performed, the Court concludes that $60.00 is a reasonable hourly rate for the paralegal and law students. 3. Lodestar Calculation The Court calculates the lodestar figure by multiplying the number of hours productively expended by counsel by a reasonable hourly rate determined. Table 3 summarizes the lodestar calculation: TABLE 3: Lodestar Calculation of Attorneys’ Fees 4. Lodestar Departure “Once established, the lodestar represents a presumptively reasonable fee, although it is subject to upward or downward adjustment in certain circumstances.” Lipsett, 975 F.2d at 937. Defendants Local 382 and Flynn argue that the fees should be reduced because Dixon did not prevail on all claims originally presented to the Court and the fees are excessive. See Local 382/Flynn Opp. at 13-14. Dixon argues that the lodestar amount should be enhanced because of difficulties during the discovery process. Pl.’s Mem. at 3. The Court finds that neither of these arguments are sufficiently persuasive to override the “strong presumption” that the lodestar figure reflects a reasonable assessment of fees to be awarded. System Mgmt., Inc., 154 F.Supp.2d at 203-04. The Court may exercise its “authority to adjust the lodestar” only “in accordance with accepted principles.” Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331, 337 (1st Cir.1997) (citing Hensley, 461 U.S. at 429-31, 103 S.Ct. 1933). The results obtained are a significant factor to be considered in determining reasonable fees to be awarded. Hensley, 461 U.S. at 434-37, 103 S.Ct. 1933. In Cowtin, the First Circuit explained that the meaning of" }, { "docid": "8693832", "title": "", "text": "not produced sufficient evidence that $260.00 per hour is the prevailing market rate for attorneys such as himself. Def.’s Opp. at 3-4. It argues that Notts should receive no more than the $185.00 per hour that he typically charges his clients. Id. at 4. Having considered both parties’ arguments, the Court finds that $200.00 per hour to be a reasonable rate for No-tts’s time. Although Notts’s time might well be charged to clients at $260.00 per hour were he still at a mid-sized law firm, he is currently a solo practitioner who did all of the work on Martino’s case himself, without any assistance from junior attorneys, paralegals, or the like. Notts Affidavit at ¶ 19. Were Notts at a larger law firm, some of the work on Martino’s case would no doubt have been performed by employees with significantly lower hourly rates. Accordingly, Kelly’s affidavit fails to convince the Court that $260.00 per hour is the market rate for attorneys such as Notts. Rather, the Court considers $200.00 per hour to be a reasonable rate for Notts’s work. See, e.g., Connolly v. Harrelson, 33 F.Supp.2d 92, 95-96 (D.Mass.1999) (approving hourly rate of $200.00 for civil rights attorney with twenty-five years of experience); McLaughlin by McLaughlin v. Boston Sch. Comm., 976 F.Supp. 53, 62 (D.Mass.1997) (Garrity, J.) (awarding hourly rate of $200.00 for civil rights attorney). The Court rejects the argument that Notts's hourly rate should be enhanced to reflect his risk in taking the case on a contingent fee basis, as the Supreme Court has held that such enhancements are not appropriate. See City of Burlington v. Dague, 505 U.S. 557, 566, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); Lipsett 975 F.2d at 943. Calculating the reasonable number of hours spent by Notts on the litigation in question as 375.275 total hours, and using a rate of $200 an hour, the Court finds the lodestar figure for Notts to be $75,055.00. b. Mary Sullivan Mary Sullivan requests an hourly rate of $175.00, the rate she charged Mar-tino. In support of this request, she states that she has worked since" }, { "docid": "23538288", "title": "", "text": "Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 27, 679 N.E.2d 191 (1997), provides the most guidance. In that case, the SJC held that the chapter 231, section 85K damages limitation does not apply to damages awarded under Mass. Gen. Laws eh. 93A, the Massachusetts Consumer Protection Statute, on the basis that chapter 93A “creates an independent statutory basis of liability” and “forbid[s] conduct not previously unlawful under the common law of contract and tort or under any prior statute,” id. (internal citation omitted). Like chapter 93A, chapter 151B creates rights that did not exist under the common law, see, e.g., Melley v. Gillette Corp., 19 Mass.App.Ct. 511, 512-13, 475 N.E.2d 1227 (1985), aff'd, 397 Mass. 1004, 491 N.E.2d 252 (1986); the causes of action to which it gives rise thus cannot properly be called causes of action in tort. Accordingly, we hold that the damages award to Dr. McMillan pursuant to chapter 151B is not subject to the constraints of chapter 231. Defendants next contend that the district court misapplied the relevant legal standard when it awarded attorney’s fees because it did not award the appropriate hourly rates for the different types of services performed and instead allowed Dr. McMillan’s counsel to recover her standard hourly rate ($285 per hour) for performing tasks appropriate to either a less experienced lawyer or a secretary or paralegal. We agree. We have established that “clerical or secretarial tasks ought not to be billed at lawyers’ rates, even if a lawyer performs them.” Lipsett v. Blanco, 975 F.2d 934, 940 (1st Cir.1992). Thus, “[t]ime spent on clerical or secretarial tasks by attorneys should be compensated at a rate commensurate with the nature of the tasks.” Massachusetts Dep’t of Pub. Health v. School Comm, of Tewksbury, 841 F.Supp. 449, 460 (D.Mass.1993); see Deary v. City of Gloucester, 789 F.Supp. 61, 66 (D.Mass.1992), aff'd, 9 F.3d 191 (1st Cir.1993). We think that it was an abuse of discretion to award the same rate for all tasks performed by Dr. McMillan’s counsel, without regard to the nature of the tasks. Accordingly, we remand this" }, { "docid": "16626381", "title": "", "text": "336-37. As a practical matter, however, a survey of recent case law demonstrates that the First Circuit examines these “discretionary” decisions extremely closely, as evidenced by language in a string .of recent reversals of district court decisions on fee applications. See, e.g., McMillan v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, 140 F.3d 288, 310-11 (1st Cir.1998); Rodriguez-Hernandez v. Miranda-Welez, 132 F.3d 848, 858-60 (1st Cir.1998); Coutin, 124 F.3d at 342; Williams, 113 F.3d at 1297-98. I proceed with care. A. Calculating the Lodestar The lodestar approach “contemplates judicial ascertainment of ‘the number of hours reasonably expended oh the litigation multiplied by a reasonable hourly rate’ as the starting point in constructing a fee award.” Coutin, 124 F.3d at 337 (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Though the prevailing party is under an obligation to submit a request for fees including its calculations of hours expended multiplied by a requested hourly rate, the Court “has a right&emdash;indeed, a duty&emdash;to see whether counsel substantially exceeded the bounds of reasonable effort.” United States v. Metropolitan Dist. Comm’n, 847 F.2d 12, 17 (1st Cir. 1988) (internal quotation omitted). “[T]he law firm’s bill need not be swallowed whole by the client’s litigation adversary just because it is the law firm’s bill.” Id. The Court, then, must engage in a thoughtful analysis of the number of hours expended and the hourly rates charged to ensure both are reasonable. “In these and other ways, the trial court, though adhering to the time- and-rate-based method of fee calculation, may fashion a lodestar which differs substantially from the fee requested by the prevailing party.” Coutin, 124 F.3d at 337. Here, the Court sets out the standard it applied uniformly to plaintiffs’ attorney records in arriving at reasonable hours figures. Then, after explaining the standard applied for hourly rates, the Court applies both standards to each lawyer (and the clerks) to arrive at the lodestar. 1. Reasonable Hours Expended Plaintiffs’ counsel submitted stacks of billing records, which the Court reviewed in arriving at a reasonable fee. Generally, plaintiffs’" }, { "docid": "14749326", "title": "", "text": "Lipsett, 975 F.2d at 937. A. Schwartz, Scheckner, and Massey 1. Calculating the Lodestar (a) Reasonable Hours Expended McClure and Pender argue both that the time entries that Schwartz sub mitted were so vague as to make it impossible to tell if they included duplicative or unnecessary time entries and that what is discernable from the entries evidences inefficiencies such as redundancies and overly-abundant time spent preparing proposed jury instructions. Defs.’ Opp’n at 16-17. The Court is not persuaded by McClure’s and Pender’s arguments. The entries provided in Schwartz’s affidavit are sufficiently descriptive for the Court to determine what tasks were being performed and whether to categorize them as “core” or “non-core” work, as explained below. The entries reflect little duplication of efforts, which, when encountered (e.g., eo-eounsel interactions or review of co-counsel documents), the Court has treated as non-core work. Moreover, the Court is not inclined to analyze Schwartz’s logged hours in an effort to weed out each hour spent on unsuccessful efforts. Indeed, the mere fact that a particular product (such as jury instructions) was not used ultimately for its assigned task does not necessarily imply that its development was not helpful to counsel in addressing other aspects of the case. See Guckenberger v. Boston Univ., 8 F.Supp.2d 91, 102 (D.Mass.1998) (Saris, J.) (declining generally to parse out hours spent on unsuccessful claims). Thus, the Court did not delete any hours submitted to it in Schwartz’s affidavit in calculating the lodestar. (b) Hourly Rates Although the hours submitted by Schwartz are reasonable, the Court is less persuaded by Schwartz’s proposed hourly rates. Schwartz offers little to assist the Court in determining the prevailing market rate in Boston for experienced civil rights attorneys, associates, and law clerks. Schwartz’s submission from Massachusetts Lawyers Weekly, which reports hourly rates from Boston law firms, does not inform the Court as to the prevailing market rate for lawyers offering services similar to those provided by Schwartz, Scheckner, Massey, or Alpert. See Guckenberger, 8 F.Supp.2d at 105. Thus, the Court, in an effort to maintain a modicum of consistency with other awards of attorneys’" }, { "docid": "5439681", "title": "", "text": "what is essentially a tort case in the storied but straightforward tradition of Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403 (1891). “The statutory provision for attorney’s fees aims to attract competent legal counsel for those with meritorious claims. It is not designed to provide a windfall recovery of fees.” Fontaine, 415 Mass. at 326, 613 N.E.2d at 892 (discussing analogous attorneys’ fees provision in state anti-age discrimination statute) (citation omitted). In a case such as this, where the plaintiffs obtain modest damages for a simple tort that bears little significance for anyone beyond the parties at bar, the statutory purpose of the Massachusetts Civil Rights Act is adequately satisfied by awarding attorneys’ fees based on the lodestar method, without enhancement. VI. ORDER In accordance with the foregoing discussion, this Court hereby ORDERS Harrelson to pay Connolly and Adao the following assessment of reasonable attorneys’ fees pursuant to Mass. Gen. L. ch. 12, § 11I: attorneys’ fees of $79,949.41, representing the total requested by Connolly and Adao less $17,785.00 attributable to the disallowed fee enhancement. SO ORDERED. . While Connolly and Adao have chosen to refer to the requested multiplier as a \"lodestar,” to avoid confusion this Court will refer solely to a \"fee enhancement.” The term \"lodestar\" has in fact long been used to mean the product of an attorney’s hours reasonably spent on litigation multiplied by a reasonable hourly rate for lawyers of comparable skill, reputation, and experi ence in the relevant community. See McLaughlin v. Boston Sch. Committee, 976 F.Supp. 53, 60 n. 10 (D.Mass.1997) (Garrity, J-) (providing an historical account of the term’s development). The \"lodestar\" figure is itself subject to adjustment, upward or downward, in light of other relevant factors such as the level of success obtained. See Morgan v. Gittens, 915 F.Supp. 457, 469 (D.Mass. 1996) (Garrity, J.). . . Harrelson has not challenged these figures. . Indeed, it has even been said \"that adjustments are not to be given in reward for stellar performance.” Hall v. Ochs, 817 F.2d 920, 929 (1st Cir.1987) (emphasis added). . The federal treatment of contingency representation" }, { "docid": "8693833", "title": "", "text": "rate for Notts’s work. See, e.g., Connolly v. Harrelson, 33 F.Supp.2d 92, 95-96 (D.Mass.1999) (approving hourly rate of $200.00 for civil rights attorney with twenty-five years of experience); McLaughlin by McLaughlin v. Boston Sch. Comm., 976 F.Supp. 53, 62 (D.Mass.1997) (Garrity, J.) (awarding hourly rate of $200.00 for civil rights attorney). The Court rejects the argument that Notts's hourly rate should be enhanced to reflect his risk in taking the case on a contingent fee basis, as the Supreme Court has held that such enhancements are not appropriate. See City of Burlington v. Dague, 505 U.S. 557, 566, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); Lipsett 975 F.2d at 943. Calculating the reasonable number of hours spent by Notts on the litigation in question as 375.275 total hours, and using a rate of $200 an hour, the Court finds the lodestar figure for Notts to be $75,055.00. b. Mary Sullivan Mary Sullivan requests an hourly rate of $175.00, the rate she charged Mar-tino. In support of this request, she states that she has worked since 1983 at Segal, Roitman, & Coleman, a labor and employment firm, first as an associate and then as a partner. Sullivan Affidavit, ¶ 3. She also asserts that $175.00 per hour was the rate charged by the firm for individual employment cases during the time that she represented Martino. Id. at ¶ 4. The MBTA does not dispute that $175.00 per hour is a reasonable rate for Sullivan, and the Court so finds. Accordingly, the lodestar figure for Sullivan is $1,645.00 (9.4 hours of work multiplied by $175.00). c. Andrew Kisseloff Andrew Kisseloff requests an hourly rate of $200.00, the rate that he charged for his brief work on Martino’s case. In support of this request, however, he states only that he has practiced law in Massachusetts since 1977 and that he once received attorney’s fees at the rate of $250.00 per hour. PL’s Mot., Ex. 5, Kisse-loff Affidavit, ¶¶ 2-3. The MBTA, accurately noting that the Court has been “told very little” about Kisseloffs background and qualifications, urges the Court to award him an" }, { "docid": "14749327", "title": "", "text": "instructions) was not used ultimately for its assigned task does not necessarily imply that its development was not helpful to counsel in addressing other aspects of the case. See Guckenberger v. Boston Univ., 8 F.Supp.2d 91, 102 (D.Mass.1998) (Saris, J.) (declining generally to parse out hours spent on unsuccessful claims). Thus, the Court did not delete any hours submitted to it in Schwartz’s affidavit in calculating the lodestar. (b) Hourly Rates Although the hours submitted by Schwartz are reasonable, the Court is less persuaded by Schwartz’s proposed hourly rates. Schwartz offers little to assist the Court in determining the prevailing market rate in Boston for experienced civil rights attorneys, associates, and law clerks. Schwartz’s submission from Massachusetts Lawyers Weekly, which reports hourly rates from Boston law firms, does not inform the Court as to the prevailing market rate for lawyers offering services similar to those provided by Schwartz, Scheckner, Massey, or Alpert. See Guckenberger, 8 F.Supp.2d at 105. Thus, the Court, in an effort to maintain a modicum of consistency with other awards of attorneys’ fees within this district, takes into account attorneys’ fee petitions previously encountered within this district. This Court recognizes that Schwartz is a highly skilled civil rights attorney with years of experience and is quite prominent within the Boston legal community. Schwartz’s request for an hourly rate of $330, however, is too steep. Although some large Boston law firms might charge this amount, as indicated by the report from the Massachusetts Lawyers Weekly, such figures simply do not speak to whether those lawyers provide similar services to their clients. This Court therefore holds that a fee of $250 is a reasonable hourly rate for a civil rights attorney of Schwartz’s outstanding quality. See, e.g., Alfonso v. Aufiero, 66 F.Supp.2d 183, 197 (D.Mass.1999) (Saris, J.) (holding that $250 is a typical hourly rate for a senior private civil rights trial attorney in Boston); Zurakowski v. D’Oyley, 46 F.Supp.2d 87, 89 n. 2 (D.Mass.1999) (holding that hourly rate of $240 was reasonable where counsel was “foremost practitioner” in civil rights but noting that this rate “Ought not be" }, { "docid": "3233220", "title": "", "text": "reasonable in Boston, Massachusetts, where plaintiffs counsel practices, they should be reduced to reflect the billing rates of attorneys practicing in Springfield, Massachusetts, where the litigation occurred. Notably, defendant does not provide affidavits suggesting that plaintiffs counsel’s rates are inflated. Furthermore, plaintiffs counsel has been a member of the Massachusetts Bar for over ten years and brings considerable experience to this case. This court has previously expressed the view that a request up to $250 may represent a reasonable hourly rate for an experienced attorney, even if prevailing rates are somewhat lower than in other parts of the state. See Stanton v. Southern Berkshire Reg’l Sch. Dist., 28 F.Supp.2d 37, 42-43 (D.Mass.1998). Nothing in this case changes that view. Accordingly, this court is satisfied with the hourly rates billed by plaintiffs counsel. Because the vast majority of hours worked by counsel were billed at the 1998 rates, this court will, for simplicity’s sake, use those rates in reaching the lodestar figure, i.e., $230 for lead counsel, $200 for the associate, and $100 for the paralegal. The number of hours billed by plaintiffs counsel, however, is more problematic. According to counsel’s affidavit in support of the application for fees and costs, lead counsel billed approximately 263 hours, his associate billed approximately 50 hours, and the paralegal 5.25 hours. Lead counsel’s hours are excessive. As already noted, experienced counsel is entitled to an hourly billing rate reflecting the expertise he has developed over the years; it is equally true, however, that his experience should enable him to handle a case in fewer hours than another lawyer with less experience. See id.; see also Pearson v. Fair, 980 F.2d 37, 47 (1st Cir.1992) (noting that a firm’s high hourly rates presuppose familiarity and expertise and should reduce the number of attorneys necessary). Moreover, some tasks in this case could more efficiently have been assigned to less experienced attorneys. This is not a case in which the court can point to a single or several billing entries and declare that counsel billed far too many hours for particular tasks. Rather, it is this court’s" }, { "docid": "14749330", "title": "", "text": "Id. Ex. B. The requested rates of $190 and $70 per hour appear too steep for the services of a third-year associate and a law student. Indeed, other courts within this district have awarded lower fees to similarly qualified individuals. E.g., Alfonso, 66 F.Supp.2d at 197 (awarding hourly rate of $130 to associate); Guckenberger, 8 F.Supp.2d at 107-08 (approving hourly rate of $140 for junior attorney and hourly rate of $60 for law clerks and paralegals); Murray v. Shaw Indus., Inc., 990 F.Supp. 46, 48 (D.Mass.1997) (approving hourly rate of $125 to $140 for associate counsel). Accordingly, this Court reduces Scheck-ner’s rate to $120 and Massey’s rate to $60 per hour. The Court also reduces the attorneys’ hourly rates based on the type of work performed. “It has become established practice in this Circuit to distinguish between ‘core’ and ‘non-core’ work when determining attorneys’ fees awards.” Connolly, 33 F.Supp.2d at 96 (citing Brewster v. Dukakis, 3 F.3d 488, 492 n. 4 [1st Cir.1993]). “[Cjore work includes legal research, writing of legal documents, court appearances, negotiations with opposing counsel, monitoring, and implementation of court orders. Non-core work consists of less demanding tasks, including letter writing and telephone conversations.” Brewster, 3 F.3d at 492 n. 4. Non-core work also includes conferences with co-counsel. Alfonso, 66 F.Supp.2d at 196 (quoting McLaughlin, 976 F.Supp. at 62). Moreover, non-core work includes time spent preparing a motion for attorneys’ fees because such time usually involves little more than documentation of what the lawyer has done. Id. (citing Brewster, 3 F.3d at 494). Usually, non-core work is compensated at two-thirds of the particular lawyer’s hourly rate for core work. Connolly, 33 F.Supp.2d at 96 (citing Morgan v. Gittens, 915 F.Supp. 457, 471 [D. Mass.1996] [Garrity, JJ). Where an attorney has failed to delineate within a particular entry what work is core work and what work is non-core work, this Court has distributed the recorded hours evenly among each task within a particular entry. Cf. Alfonso, 66 F.Supp.2d at 197 (treating mixed entries as one-half core and one-half non-core); Guckenberger, 8 F.Supp.2d at 102 (same). For example, if" }, { "docid": "10536519", "title": "", "text": "The district court also considers other rates that have been awarded in similar cases in the same district. Levy, 1992 WL 265936, at *3; Miner v. City of Glens Falls, 1992 WL 349668 (N.D.N.Y.1992), aff'd, 999 F.2d 655 (2d Cir. 1993); Fiacco, 663 F.Supp. at 745; Auburn Enlarged City Sch. Dist., 1990 WL 19139, at *2. In this case, plaintiffs’ lead counsel, Jerold Slate, seeks fees at the hourly rate of $215. The prevailing market rate within the Northern District of New York, however, is generally no more than $150 per hour for practitioners with significant experience. See, e.g., Serbalik v. Gray, 1999 WL 34989, *3 (N.D.N.Y.1999); Marshall v. State of New York, 31 F.Supp.2d 100, 104 (N.D.N.Y.1998); Abour-Khadra v. Bseirani, 971 F.Supp. 710, 718 (N.D.N.Y.1997); Equal Employment Opportunity Comm’n v. American Fed’n of State, County and Mun. Employees, 1996 WL 663971 (N.D.N.Y. Nov.12, 1996). Moreover, though Slate argues for application of an hourly rate of $215 per hour, his affidavit admits elsewhere that he “verily believe[s] that the legal fee of $150 per hour based upon [his] experience, prevailing rate and legal fees charged by other attorneys who practice before this court is reasonable in all respects.” Slate Affidavit in Support of Attorneys’ Fees, at ¶ 11. In light of the experience Slate recounts in his affidavit, he will be compensated at the hourly rate of $150 for practitioners with significant experience. Slate also seeks to recover for his travel time at the hourly rate of $100 per hour. Travel time, however, is generally recoverable at the rate of one-half a lawyer’s awarded hourly rate. See, e.g., Marshall, 1998 WL 886967, at *4; McLaughlin v. State of New York, 1998 WL 915431, *2 (N.D.N.Y. Dec.22, 1998). Therefore, Slate will be reimbursed for travel time at the hourly rate of $75. Plaintiffs also seek hourly fees for two associates, Maura Barrett and David Res-nick, as follows: $75 per hour for legal work, and $35 per hour for paralegal work. These rates are well in line with the prevailing market rates; thus, they are accepted. See, e.g., Serbalik, 1999 WL 34989," }, { "docid": "5439682", "title": "", "text": "enhancement. SO ORDERED. . While Connolly and Adao have chosen to refer to the requested multiplier as a \"lodestar,” to avoid confusion this Court will refer solely to a \"fee enhancement.” The term \"lodestar\" has in fact long been used to mean the product of an attorney’s hours reasonably spent on litigation multiplied by a reasonable hourly rate for lawyers of comparable skill, reputation, and experi ence in the relevant community. See McLaughlin v. Boston Sch. Committee, 976 F.Supp. 53, 60 n. 10 (D.Mass.1997) (Garrity, J-) (providing an historical account of the term’s development). The \"lodestar\" figure is itself subject to adjustment, upward or downward, in light of other relevant factors such as the level of success obtained. See Morgan v. Gittens, 915 F.Supp. 457, 469 (D.Mass. 1996) (Garrity, J.). . . Harrelson has not challenged these figures. . Indeed, it has even been said \"that adjustments are not to be given in reward for stellar performance.” Hall v. Ochs, 817 F.2d 920, 929 (1st Cir.1987) (emphasis added). . The federal treatment of contingency representation as a justification for enhancement is even more restrictive. See Lipsett, 975 F.2d at 943 (holding that, under the federal Fees Act, \"when a prevailing party seeks an attorneys’ fee award in a civil rights case ..., enhancement of the lodestar because of counsel’s risk of nonpayment is not permitted”). . Regardless, awarding fees based upon current billing rates, as the Court does in this case, is one accepted means of compensating for a delay in payment. See Missouri v. Jenkins, 491 U.S. 274, 283-84, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989)." }, { "docid": "7130455", "title": "", "text": "217 (D.Mass.2004). The Court will continue not to recognize the distinction between “core” versus “non-core” work by establishing one reasonable rate to apply to the lodestar calculation. Taking into account Bernstein’s ten years of experience in employment law, the length, complexity, and outcome of the case, the rates awarded to civil rights attorneys in the Boston area recently, and the affidavits attesting to Bernstein’s impressive skills and accomplishments, the Court concludes that $250.00 is a reasonable hourly rate. “While prior cases do not necessarily provide precedent regarding the reasonableness of the fees awarded, they nevertheless provide a reflective picture of what is happening in the market.” McDonough, 353 F.Supp.2d at 188 (citing System Mgmt., Inc., 154 F.Supp.2d at 210). The case law confirms that $250.00 is a reasonable hourly rate for an attorney in Boston with experience comparable to that of Bernstein. See, e.g., McDonough, 353 F.Supp.2d at 188 (awarding $200.00 to attorney with over eleven years in the relevant field); Martino, 230 F.Supp.2d at 205-06 (awarding $200.00 as hourly rate for civil rights attorney); System Mgmt., Inc., 154 F.Supp.2d at 210 (approving an hourly rate of $235.00 for an attorney with twenty-four years of experience and an hourly rate of $200.00 for an attorney with eleven years experience); Ciulla v. Rigny, 89 F.Supp.2d 97, 104 (D.Mass.2000) (awarding civil rights attorney hourly rate of $200.00); Alfonso v. Aufiero, 66 F.Supp.2d 183, 197 (D.Mass. 1999) (Saris, J.) (awarding civil rights attorney an hourly rate of $250.00). b. Attorney Monica Pastorok Pastorok requests an hourly rate of $200.00 as second chair. Pl.’s Mem. ¶ 4. Pastorok graduated from New York University Law School in 1984 and has been practicing in Massachusetts since 2001. Pastorok Aff. ¶¶ 1, 3. She practiced corporate law for five years in New York with the law firm of Wilkie Farr & Gallagher. Id. ¶ 6. Pastorok avers that she performed “extensive trial preparation” and legal research and wrote submissions for this suit since 2004. Id. ¶ 8. Pastorok’s experience in employment law is substantially less than that of Bernstein. While Bernstein has spent ten years concentrating in" }, { "docid": "14749328", "title": "", "text": "fees within this district, takes into account attorneys’ fee petitions previously encountered within this district. This Court recognizes that Schwartz is a highly skilled civil rights attorney with years of experience and is quite prominent within the Boston legal community. Schwartz’s request for an hourly rate of $330, however, is too steep. Although some large Boston law firms might charge this amount, as indicated by the report from the Massachusetts Lawyers Weekly, such figures simply do not speak to whether those lawyers provide similar services to their clients. This Court therefore holds that a fee of $250 is a reasonable hourly rate for a civil rights attorney of Schwartz’s outstanding quality. See, e.g., Alfonso v. Aufiero, 66 F.Supp.2d 183, 197 (D.Mass.1999) (Saris, J.) (holding that $250 is a typical hourly rate for a senior private civil rights trial attorney in Boston); Zurakowski v. D’Oyley, 46 F.Supp.2d 87, 89 n. 2 (D.Mass.1999) (holding that hourly rate of $240 was reasonable where counsel was “foremost practitioner” in civil rights but noting that this rate “Ought not be taken as some emerging Massachusetts standard”); Connolly v. Harrelson, 33 F.Supp.2d 92, 95-96 (D.Mass.) (approving hourly rate of $200 in civil rights case for attorney with twenty-five years of experience), aff'd, 201 F.3d 426, 1999 WL 699906 (1st Cir.1999); McLaughlin ex rel. McLaughlin v. Boston Sch. Comm., 976 F.Supp. 53, 62 (D.Mass.1997) (Garrity, J.) (holding $200 hourly rate reasonable in civil rights action). Moreover, this is the highest amount that any other court has awarded Schwartz in previous litigation. Schwartz Aff. ¶ 13 (describing court awarded hourly rates ranging from $200 in 1987 to $250 in 1996). Thus, the Court awards Schwartz at a $250 hourly rate. With respect to Scheckner and Massey, this Court has little information from which to determine hourly rates. Within the law firm of Rodgers, Powers & Schwartz, Scheckner bills at $190 per hour and Massey bills at $75 per hour. Id. ¶¶ 14-15. Moreover, the information provided by Schwartz informs the Court that among Boston firms, the associate hourly rate ranges from $75 per hour to $310 per hour." }, { "docid": "23283252", "title": "", "text": "argues that the Magistrate Judge abused his discretion in setting the reasonable hourly fee at $200. However, this hourly rate was among four that Goodman’s counsel recommended as reasonable. Further, the Commission does not object to the $200 hourly rate, instead advocating for the reasonableness of that rate. In fact, several cases suggest that $200 is within the range of reasonableness for fee awards in the Eastern District of Pennsylvania. See Becker v. ARCO Chem. Co., 15 F.Supp.2d 621, 631 (E.D.Pa.1998), dismissed as moot by 207 F.3d 176 (3d Cir.2000) (“[Attorneys representing plaintiffs in civil rights cases are awarded an hourly rate of between $150 to $250, depending on their level of experience.”); Churchill v. Star Enters., No. 97-3527, 1998 WL 254080, at *3-*4 (E.D.Pa. Apr.17, 1998) (partner awarded $250 hourly rate and second-year associate granted $100 hourly rate in a Family and Medical Leave Act action); Valentin v. Crozer-Chester Medical Center, No. 95-3722, 1998 WL 32665, at *3 (E.D.Pa. Jan.26, 1998) (lawyer with “seventeen years (experience) in the area[s] of disability, worker’s compensation and employment discrimination” was awarded $225 an hour); Burks v. City of Philadelphia, 974 F.Supp. 475, 484 n. 7 (E.D.Pa.1997) (self-described “highly experienced and skillful civil rights lawyer” was awarded $205 as an hourly rate); Smith v. Int’l Servs., Inc., No. 95-2038, 1997 WL 667872, at *2-*3 (E.D.Pa. Oct.9, 1997) (lawyer with seven years experience in “complex litigation,” but with relatively little experience in employment law, awarded $150 to $160 per hour); Herkalo v. National Liberty Corp., No. 94-CV-7660, 1997 WL 539754, at *3 (E.D.Pa. Aug.7, 1997) (approving hourly rates of $175 to $195 for experienced partners, and $85 to $125 for associates, for sex discrimination suit); Tobin v. Haverford School, 936 F.Supp. 284, 292 (E.D.Pa.1996) (lawyer with twenty years at the bar, but with relatively little experience in employment cases, was found to command $165 in the marketplace). Because $200 was among the rates suggested by Goodman’s counsel, because the Commission does not contest this as a reasonable rate, and because $200 falls well within the range of reasonableness for similar cases in the Eastern" }, { "docid": "3852185", "title": "", "text": "computer and taking photographs to the lab for processing should not be compensated at their, usual hourly rates. “[Clerical or secretarial tasks ought not to be billed at lawyers’ rates, even if a lawyer performs them.” Lipsett, 975 F.2d at 940 (finding that hours involving merely translation of documents and court filings should be compensated at a rate “less extravagant” than $150 per hour (citing cases)); see also McMillan, 140 F.3d at 307-08 (finding an abuse of discretion where the trial court did not distinguish between tasks that “could have been ade quately performed by a less-experienced lawyer or by a secretary or paralegal”). Accordingly, although recognizing Attorney Hernandez’s status as a sole practitioner operating without the support of a large clerical or legal staff, the Court determined that the time spent for photo processing and computer filing should have been billed at $40 per hour. See Guckenberger v. Boston Univ., 8 F.Supp.2d 91, 107 (D.Mass.1998) (applying a rate of $40 per hour for non-core paralegal work in the Boston area). Finally, in applying these distinctions, the Court faced the difficulty of a number of mixed entries containing core, non-core, and clerical tasks with a single time figure. Consistent with its past practice, the Court decided to divide the hours in all such mixed entries equally between the component categories. See id. at 102 (considering mixed entries as one-half core, one-half non-core). The one exception was for travel time. When an entry explicitly contained a reference to travel time without indicating how many hours were actually spent traveling, I allocated one hour of the entry for travel. Some entries for attending court hearings or the trial made no mention of travel time. Presuming that it was included, I allocated one hour of each of these entries for travel as well. In keeping with the approved First Circuit standard, the Court applied rates for non-core hours at two-thirds the approved billing rates it assigned for core legal work. See Brewster, 3 F.3d at 492; McLaughlin, 976 F.Supp. at 62. 2. Hourly Rates for Each Attorney In order to determine the appropriate" }, { "docid": "14472167", "title": "", "text": "The court is satisfied that the rates charged by Bridgewater’s counsel are reasonable, and represent prevailing market rates for services of the kind that counsel performed here. Yankee suggests that the rates charged by Boston counsel are too high, and that local Springfield rates should prevail. However, this was an intellectual property case. The First Circuit has held that where the client reasonably hires counsel from outside the community to perform specialized work, a reasonable rate in the attorney’s city of origin will be awarded. Maceira, 698 F.2d at 40; see also Stanton v. Southern Berkshire Reg’l Sch. Dist., 28 F.Supp.2d 37, 42 (D.Mass.1998). Bridgewater, a South Carolina company, can certainly be forgiven for looking to a large Boston law firm to defend an intellectual property suit in Springfield. Yankee itself does not argue that the claimed rates are greater than those billed in the Boston legal market generally during the course of this lawsuit. In fact, the rates ($135 to $200 for associates and $300 to $320 for partners) are quite reasonable for the Boston area. See Guckenberger v. Boston University, 8 F.Supp.2d 91, 105 (D.Mass.1998) (approving rates ranging from $140 to $325 for civil rights attorneys); Arthur D. Little Int'l, Inc. v. Dooyang Corp., 995 F.Supp. 217, 224 n. 1 (D.Mass.1998) (finding rate of $325 per hour reasonable for litigation partner in large Boston firm). These rates will therefore be used in calculating the lodestar amount. Yankee does not specifically challenge the rates charged for the South Carolina attorneys who worked on this case, which range between $150 and $225 per hour. The court will accept them as reasonable. b. Hours Reasonably Spent. The court must next determine the number of hours reasonably spent in the litigation and multiply it by the reasonable hourly rate. The court must calculate the time counsel spent on the case and subtract duplicative, unproductive or excessive hours. See Gay Officers Action League v. Commonwealth of Puerto Rico, 247 F.3d 288, 295 (1st Cir.2001). In calculating such hours, the court begins with counsel’s actual billing sheets. As noted above, counsel billed for 6,541.1" }, { "docid": "14472168", "title": "", "text": "Boston area. See Guckenberger v. Boston University, 8 F.Supp.2d 91, 105 (D.Mass.1998) (approving rates ranging from $140 to $325 for civil rights attorneys); Arthur D. Little Int'l, Inc. v. Dooyang Corp., 995 F.Supp. 217, 224 n. 1 (D.Mass.1998) (finding rate of $325 per hour reasonable for litigation partner in large Boston firm). These rates will therefore be used in calculating the lodestar amount. Yankee does not specifically challenge the rates charged for the South Carolina attorneys who worked on this case, which range between $150 and $225 per hour. The court will accept them as reasonable. b. Hours Reasonably Spent. The court must next determine the number of hours reasonably spent in the litigation and multiply it by the reasonable hourly rate. The court must calculate the time counsel spent on the case and subtract duplicative, unproductive or excessive hours. See Gay Officers Action League v. Commonwealth of Puerto Rico, 247 F.3d 288, 295 (1st Cir.2001). In calculating such hours, the court begins with counsel’s actual billing sheets. As noted above, counsel billed for 6,541.1 hours of work in this case. Yankee strenuously objects to this amount of time. Indeed, their attitude toward justifiable fees is illustrative of their “take no prisoners” approach to this entire litigation. Although the Supreme Court has advised that “[a] request for attorney’s fees should not result in a second major litigation,” Yankee has attempted to do just that, by seeking to file interrogatories demanding billing information from opposing counsel, and even asking for leave to depose them. Hensley, 461 U.S. at 437, 103 S.Ct. 1933. Yankee has also taken an unreasonably sharp position about the amount of time necessary for Bridgewater to defend against this aggressive suit. For example, Yankee labels literally all the time billed by Attorney Albert and his colleagues in preparing Bridgewater’s able Reply at the summary judgment stage as “[ujnproduc-tive, duplicative or excessive time reviewing, drafting, editing, or filing.” See Highlighted and Annotated Billing Sheets, Docket No. 209, Ex. C, Billing Sheets dated April 5, 2000. Never mind that this clear and well-organized 50-page brief was filed in response to" }, { "docid": "14749329", "title": "", "text": "taken as some emerging Massachusetts standard”); Connolly v. Harrelson, 33 F.Supp.2d 92, 95-96 (D.Mass.) (approving hourly rate of $200 in civil rights case for attorney with twenty-five years of experience), aff'd, 201 F.3d 426, 1999 WL 699906 (1st Cir.1999); McLaughlin ex rel. McLaughlin v. Boston Sch. Comm., 976 F.Supp. 53, 62 (D.Mass.1997) (Garrity, J.) (holding $200 hourly rate reasonable in civil rights action). Moreover, this is the highest amount that any other court has awarded Schwartz in previous litigation. Schwartz Aff. ¶ 13 (describing court awarded hourly rates ranging from $200 in 1987 to $250 in 1996). Thus, the Court awards Schwartz at a $250 hourly rate. With respect to Scheckner and Massey, this Court has little information from which to determine hourly rates. Within the law firm of Rodgers, Powers & Schwartz, Scheckner bills at $190 per hour and Massey bills at $75 per hour. Id. ¶¶ 14-15. Moreover, the information provided by Schwartz informs the Court that among Boston firms, the associate hourly rate ranges from $75 per hour to $310 per hour. Id. Ex. B. The requested rates of $190 and $70 per hour appear too steep for the services of a third-year associate and a law student. Indeed, other courts within this district have awarded lower fees to similarly qualified individuals. E.g., Alfonso, 66 F.Supp.2d at 197 (awarding hourly rate of $130 to associate); Guckenberger, 8 F.Supp.2d at 107-08 (approving hourly rate of $140 for junior attorney and hourly rate of $60 for law clerks and paralegals); Murray v. Shaw Indus., Inc., 990 F.Supp. 46, 48 (D.Mass.1997) (approving hourly rate of $125 to $140 for associate counsel). Accordingly, this Court reduces Scheck-ner’s rate to $120 and Massey’s rate to $60 per hour. The Court also reduces the attorneys’ hourly rates based on the type of work performed. “It has become established practice in this Circuit to distinguish between ‘core’ and ‘non-core’ work when determining attorneys’ fees awards.” Connolly, 33 F.Supp.2d at 96 (citing Brewster v. Dukakis, 3 F.3d 488, 492 n. 4 [1st Cir.1993]). “[Cjore work includes legal research, writing of legal documents, court appearances, negotiations" }, { "docid": "3233219", "title": "", "text": "of work performed, who performed it, the expertise that it required, and when it was undertaken.” Id. at 951. A reasonable fee must be “calculated according to the prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). “To determine the number of hours reasonably spent, one must first determine the number of hours actually spent and then subtract from that figure hours which were duplicative, unproductive, excessive, or otherwise unnecessary.” Grendel’s Den, 749 F.2d at 950. Once this lodestar figure is calculated, a court may adjust the award upward or downward to reflect other fac tors, including the result obtained. See id. at 951. Plaintiffs lead counsel in this action seeks an hourly rate of $250 for 1999 and $230 for 1998. He was assisted by an associate, whose billing rate is $225 in 1999 and was $200 in 1998, and by a paralegal whose billing rate has remained at $100 throughout the litigation. Defendant implies that while these hourly rates may be reasonable in Boston, Massachusetts, where plaintiffs counsel practices, they should be reduced to reflect the billing rates of attorneys practicing in Springfield, Massachusetts, where the litigation occurred. Notably, defendant does not provide affidavits suggesting that plaintiffs counsel’s rates are inflated. Furthermore, plaintiffs counsel has been a member of the Massachusetts Bar for over ten years and brings considerable experience to this case. This court has previously expressed the view that a request up to $250 may represent a reasonable hourly rate for an experienced attorney, even if prevailing rates are somewhat lower than in other parts of the state. See Stanton v. Southern Berkshire Reg’l Sch. Dist., 28 F.Supp.2d 37, 42-43 (D.Mass.1998). Nothing in this case changes that view. Accordingly, this court is satisfied with the hourly rates billed by plaintiffs counsel. Because the vast majority of hours worked by counsel were billed at the 1998 rates, this court will, for simplicity’s sake, use those rates in reaching the lodestar figure, i.e., $230 for lead counsel, $200 for the associate, and $100 for the paralegal." } ]

[ { "docid": "18094911", "title": "", "text": "indicated in open court that his client would be willing to plead guilty to and accept responsibility for the drug possession count, but for the government's refusal to drop the gun possession charge (which would, in effect, double Luciano's sentence). . At trial. Agent Bernal described the “bad boy” figure as “an individual with a crew cut ... giving the finger.” The stamp is used to identify the heroin as a particular “brand.” . At trial, Agent Bernal testified that these sundry items are used by heroin dealers to process heroin from the rock-hard substance imported from overseas into the powder form that is sold on the street. . Luciano does not challenge on appeal his conviction for the first count of the indictment — the drug possession charge. .Section 924 provides in pertinent part: [A]ny person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime ... be sentenced to a term of imprisonment of not less than 5 years.... 18 U.S.C. § 924(c)(1)(A) (emphasis added). . While our review for \"clear and gross injustice” may sound akin to plain error review's \"miscarriage of justice” standard, see United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), we have generally avoided framing the review of unpre-served insufficiency claims in terms of \"plain error,” as the cases cited in the text attest. But see United States v. Pena-Lora, 225 F.3d 17, 26 (1st Cir.2000) (using \"clear and gross injustice” standard for reversal when reviewing unpreserved insufficiency claim for “plain error”). Other circuits characterize the review as one for plain error only. See, e.g., United States v. Morgan, 238 F.3d 1180, 1186 (9th Cir.2001); United States v. Villasenor, 236 F.3d 220, 222 (5th Cir.2000) (per curiam). . Subparagraph (c)(2) provides: For purposes of this subsection, the term \"drug trafficking crime” means any felony punishable under the Controlled Substances Act" } ]

[ { "docid": "20512151", "title": "", "text": "related mortgage loan in which there is a borrower and a seller.” 24 C.F.R. § 3500.8(a). Among other things, the HUD-1 form is meant to \"conspicuously and clearly itemize all charges imposed upon the borrower and all charges imposed upon the seller in connection with the settlement.\" 12 U.S.C. § 2603. . For instance, if the \"cash to seller” amount was $100,000, the mortgage loan amount $75,000, and the \"cash from borrower” amount $25,000, then Foley would write Reed a check for $75,000 and Reed would sign a disbursement authorization reducing her proceeds by the remaining $25,000. . Reed pleaded guilty to 40 counts of wire fraud and 13 counts of money laundering, and was sentenced to 18 months' incarceration. Robbins pleaded guilty to 24 counts of misprision of a felony, 18 U.S.C. § 4, and was sentenced to eight months’ home confinement. . See United States v. Acosta-Colón, 741 F.3d 179, 192-93 (1st Cir.2013) (‘‘[T]he already high bar for plain error becomes even higher when dealing with an unpreserved sufficiency-of-the-evidence claim.”); United States v. Pratt, 568 F.3d 11, 18 (1st Cir.2009) (\"[T]he particularly stringent form of plain error review we apply to an unpreserved challenge to the sufficiency of the evidence asks whether the conviction resulted in a 'clear and gross injustice.' ” (citation omitted)). Other circuits, however, simply \"characterize the review as one for plain error only.” United States v. Luciano, 329 F.3d 1, 5 n. 6 (1st Cir.2003) (citing United States v. Morgan, 238 F.3d 1180, 1186 (9th Cir.2001); United States v. Villasenor, 236 F.3d 220, 222 (5th Cir.2000) (per curiam)). . Although Foley's brief focuses on the presence or absence of \"Mr. Foley’s signature” from the HUD-1 form, Foley does not argue that the HUD-ls signed by Sean Robbins as settlement agent were also insufficient because they did not contain Foley's signature. Rather, Foley’s challenge focuses solely 'on the seven HUD-ls in which the signature block was left altogether blank. . Again, however, Foley's challenge would likewise fail under plain error. See infra at 15. . Congress subsequently amended the statute in May 2009 to define" }, { "docid": "12886482", "title": "", "text": "134 (1st Cir. 2012) (“[W]hen a defendant chooses only to give specific grounds for a Rule 29 motion, all grounds not specified are considered waived and are reviewed under [the] less forgiving ‘clear and gross injustice’ standard.”) (quoting United States v. Upham, 168 F.3d 532, 537 (1st Cir. 1999), cert. denied, 527 U.S. 1011, 119 S.Ct. 2353, 144 L.Ed.2d 249 (1999)); United States v. Foley, 783 F.3d 7, 12 (1st Cir. 2015) (stating that when a “sufficiency challenge [is] un-preserved,” the appeals court “review[s] for clear and gross injustice only”). Because a Motion for Reconsideration of the denial of a previous Rule 29 motion is not the appropriate time to raise new, much less contradictory, arguments, we will affirm the district court’s ruling unless doing so would produce a “clear and gross injustice.” Cheung, 836 F.2d at 730 n.1. Under this “stringent standard, which we have described as a particularly exacting variant of plain error review,” Foley, 783 F.3d at 12, the “already high bar for plain error becomes even higher.” United States v. Acosta-Colón, 741 F.3d 179, 192-93 (1st Cir. 2013). Even to prevail under-the more lenient plain error review, a defendant must show (1) that an error occurred, (2) which was clear or obvious, (3) that affected the defendant’s substantial rights, and (4) seriously impaired the fairness, integrity, or public reputation of the judicial proceedings. United States v. Flemmi, 402 F.3d 79, 86 (1st Cir. 2005). As we explain below, there was no error in finding that an adequate jurisdictional nexus existed between the conspiratorial agreement and objectives and the United States, and Celaya therefore cannot prevail under plain error review, much less under the more exacting “clear and gross injustice” standard. ii. Jurisdictional Nexus The question of what is required to prove a sufficient jurisdictional nexus with the United States to prosecute a § 846 conspiracy is an issue that has not been squarely addressed by this Court. However, both parties agree that some jurisdictional nexus is required. This conclusion is bolstered by the general presumption that Congress does not legislate with extraterritorial effect unless clearly specified." }, { "docid": "20512136", "title": "", "text": "reading of § 2B1.1(b)(10)(C) de novo and its factual findings for clear error. United States v. Evano, 553 F.3d 109, 111 (1st Cir.2009). As defined'in the Guidelines, “sophisticated means” means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense. For example, in a telemarketing scheme, locating the main office of the scheme in one jurisdiction but locating soliciting operations in another jurisdiction ordinarily indicates sophisticated means. Conduct such as hiding assets or transactions, or both, through the use of fictitious entities, corporate shells, or offshore financial accounts also ordinarily indicates sophisticated means. U.S.S.G. § 2B1.1 cmt. n. 9(B). The enumerated examples are by no means exhaustive, and as other circuits have recognized, “the enhancement properly applies to conduct less sophisticated” than the examples. United States v. Jennings, 711 F.3d 1144, 1147 (9th Cir.2013) (collecting cases). Moreover, a “scheme may be sophisticated even if the individual elements taken alone are not.” Evano, 553 F.3d at 113. In addition to submitting fraudulent HUD-ls, Foley took the' fictitious down payments out of Reed’s sale proceeds and directed Reed to sign disbursement authorization forms in those amounts. And when some of the lenders sought additional proof of a borrower’s down payment, Foley arranged for Reed to prepare fake checks purporting to show a down payment from the borrower, and directed his paralegal to draw and then redeposit a check in his IOLTA account to create the appearance that the borrower’s funds had been received. Although Foley argues that none of these actions are “particularly sophisticated,” the whole of the scheme is greater than the sum of its parts. “All this was enough to make [Foley’s] scheme more effective and difficult to thwart, and it is enough to justify the enhancement.” Id. 2. Substantive Reasonableness Foley next contends that his sentence was substantively unreasonable relative to the sentences of his co-defendants and of attorneys involved in mortgage fraud schemes in Appolon and United States v. Innarelli 524 F.3d 286 (1st Cir.2008). We review the district court’s sentencing decision for abuse of discretion. United States v. Floyd, 740 F.3d" }, { "docid": "20512105", "title": "", "text": "gross injustice or plain error in Foley’s conviction. Foley’s secondary argument that the lenders’ acceptance of unsigned HUD-ls in turn demonstrates a lack of materiality as to the signed forms rests on the same misguided premise that the signature was the sole misrepresentation. As we have explained, both the signed and unsigned HUD-ls falsely indicated the receipt of “cash from borrower.” That the loan companies were apparently willing to extend loans based on unsigned HUD-ls hardly compels the additional inference that the loans would still have been extended even without the misrepresentations as to the receipt of down payments. On the contrary, Foley himself acknowledges the testimony of three lending company employees that the loans would not have closed if the lenders had known that the “cash from borrower” was in fact never obtained. That was more than enough evidence for the jury to conclude that these misrepre■sentations were material to the lenders’ decisions. 2. Money Laundering Foley also attacks his five money laundering convictions under 18 U.S.C. § 1957, arguing that the government failed to adduce evidence that the underlying transactions involved “criminally derived property” within the meaning of the statute. Foley concedes that he failed to renew this sufficiency challenge after trial and that our review is accordingly for clear and gross injustice only. See Marston, 694 F.3d at 134. Section 1957 punishes individuals who “knowingly engage[ ] or attempt[ ] to engage in a monetary transaction in criminally derived property of a value greater than $10,000 and is derived from specified unlawful activity.” 18 U.S.C. § 1957(a). “Criminally derived property” is in turn defined as “any property constituting, or derived from, proceeds obtained from a criminal offense.” Id. § 1957(f)(2). At the time of the transactions at issue here, the statute provided no definition of “pro ceeds.” In United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008), a divided Supreme Court grappled with alternate definitions of “proceeds” as “receipts” versus “profits” of a crime. Citing the rule of lenity, a plurality of the Court adopted the “profits” definition. Id. at 514, 128" }, { "docid": "20512137", "title": "", "text": "of Reed’s sale proceeds and directed Reed to sign disbursement authorization forms in those amounts. And when some of the lenders sought additional proof of a borrower’s down payment, Foley arranged for Reed to prepare fake checks purporting to show a down payment from the borrower, and directed his paralegal to draw and then redeposit a check in his IOLTA account to create the appearance that the borrower’s funds had been received. Although Foley argues that none of these actions are “particularly sophisticated,” the whole of the scheme is greater than the sum of its parts. “All this was enough to make [Foley’s] scheme more effective and difficult to thwart, and it is enough to justify the enhancement.” Id. 2. Substantive Reasonableness Foley next contends that his sentence was substantively unreasonable relative to the sentences of his co-defendants and of attorneys involved in mortgage fraud schemes in Appolon and United States v. Innarelli 524 F.3d 286 (1st Cir.2008). We review the district court’s sentencing decision for abuse of discretion. United States v. Floyd, 740 F.3d 22, 39 (1st Cir.2014). Foley points out that in contrast to his 72-month sentence, “Lisa Reed, the mastermind of the scheme and the person who profited from it, received a sentence of 18 months,” while Sean Robbins was not incarcerated at all. Foley further avers that he was less culpable than the lawyer defendants in Appolon and Innarelli, both of whom also received 72-month sentences. While Foley’s involvement was limited to the submission of false HUD-ls over the course of several weeks, the defendant in Innarelli also prepared false title documents and did so as part of a conspiracy spanning three years. Similarly, the lawyer in Appolon falsified loan applications and purchase-and-sale agreements as well as HUD-ls. Foley’s proffered comparisons carry little weight. First, three of these other defendants — Robbins, Reed, and the Innarelli defendant — opted to plead guilty and are therefore dissimilarly situated to Foley. See Floyd, 740 F.3d at 39. Robbins and Reed also played different roles in the conspiracy: Robbins worked largely at Foley’s direction, while Reed, even if the" }, { "docid": "12886481", "title": "", "text": "Celaya in that conspiracy.” Six months later, in his Motion for Reconsideration, Celaya switched gears, arguing that while the jury may have found that he was a member of the conspiracy, the evidence adduced at trial “can only be reasonably and fairly understood as establishing that the [sic] Celaya and his cocon-spirators agreed to the common goal of shipping cocaine from South America to Europe” and nothing in the record .“remotely shows, or even suggests, that Cela-ya knowingly agreed to participate in a conspiracy to distribute or possess with intent to distribute illegal drugs in New Hampshire or anywhere else in the United States, so as to violate §§ 841(a) and 846.” Indeed, at oral argument before the district court accompanying their motion for reconsideration, defense counsel admitted that this was a new argument that they had not previously presented to the court. We have routinely emphasized that a party’s decision to adopt this sort of shifting litigation tactic results in an elevated standard of review. See, e.g., United States v. Marston, 694 F.3d 131, 134 (1st Cir. 2012) (“[W]hen a defendant chooses only to give specific grounds for a Rule 29 motion, all grounds not specified are considered waived and are reviewed under [the] less forgiving ‘clear and gross injustice’ standard.”) (quoting United States v. Upham, 168 F.3d 532, 537 (1st Cir. 1999), cert. denied, 527 U.S. 1011, 119 S.Ct. 2353, 144 L.Ed.2d 249 (1999)); United States v. Foley, 783 F.3d 7, 12 (1st Cir. 2015) (stating that when a “sufficiency challenge [is] un-preserved,” the appeals court “review[s] for clear and gross injustice only”). Because a Motion for Reconsideration of the denial of a previous Rule 29 motion is not the appropriate time to raise new, much less contradictory, arguments, we will affirm the district court’s ruling unless doing so would produce a “clear and gross injustice.” Cheung, 836 F.2d at 730 n.1. Under this “stringent standard, which we have described as a particularly exacting variant of plain error review,” Foley, 783 F.3d at 12, the “already high bar for plain error becomes even higher.” United States v. Acosta-Colón," }, { "docid": "20512104", "title": "", "text": "language in the bank fraud statute, 18 U.S.C. § 1344, and holding that “the misrepresentation element of § 1344 is fulfilled by any intentional act or statement by an individual that falsely indicates, explicitly or implicitly, that he has authority to withdraw money from a bank,” including the entry of a credit card number into a point-of-sale device); see also United States ex rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d 377, 390 (1st Cir.2011) (“So long as the statement in question is knowingly false when made, it matters not whether it is a certification, assertion, statement, or secret handshake; False Claims liability can attach.” (quoting United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166, 1172 (9th Cir.2006)) (internal quotation marks omitted)); United States v. Zwego, 657 F.2d 248, 250 (10th Cir.1981) (holding that 18 U.S.C. § 1014, criminalizing false statements in connection with loan and credit applications, extends to both written and oral statements); United States v. Sackett, 598 F.2d 739, 741-42 (2d Cir.1979) (same). We therefore find no clear and gross injustice or plain error in Foley’s conviction. Foley’s secondary argument that the lenders’ acceptance of unsigned HUD-ls in turn demonstrates a lack of materiality as to the signed forms rests on the same misguided premise that the signature was the sole misrepresentation. As we have explained, both the signed and unsigned HUD-ls falsely indicated the receipt of “cash from borrower.” That the loan companies were apparently willing to extend loans based on unsigned HUD-ls hardly compels the additional inference that the loans would still have been extended even without the misrepresentations as to the receipt of down payments. On the contrary, Foley himself acknowledges the testimony of three lending company employees that the loans would not have closed if the lenders had known that the “cash from borrower” was in fact never obtained. That was more than enough evidence for the jury to conclude that these misrepre■sentations were material to the lenders’ decisions. 2. Money Laundering Foley also attacks his five money laundering convictions under 18 U.S.C. § 1957, arguing that the government failed" }, { "docid": "20512150", "title": "", "text": "settlement agent. More importantly, the 343 Centre Street transaction occurred over a year before the scheme for which Foley was convicted, which (according to the indictment) ran “from in or about December of 2006 to in or about January of 2007.” That is in stark contrast to Hensley, which involved a unitary scheme spanning a mere two weeks. Id. at 278. Furthermore, the indictment expressly delimited the scheme to “the financing of residential real estate purchases of condominiums at 135 Neponset Avenue.” We accordingly vacate the district court’s award of $118,104 in restitution to Argent Mortgage. IV. For the foregoing reasons, we affirm Foley’s conviction and incarcerative sentence. We affirm in part and vacate in part the district court’s restitution order, and remand for further proceedings consistent with this opinion. .As we further elaborated in United States v. Appolon, 695 F.3d 44, 53 n. 3 (1st Cir.2012): The Real Estate Settlement Procedures Act of 1974, 12 U.S.C. §§ 2601-2617, requires that a HUD-1 settlement statement be used in every real estate s'ettlement \"involving a federally related mortgage loan in which there is a borrower and a seller.” 24 C.F.R. § 3500.8(a). Among other things, the HUD-1 form is meant to \"conspicuously and clearly itemize all charges imposed upon the borrower and all charges imposed upon the seller in connection with the settlement.\" 12 U.S.C. § 2603. . For instance, if the \"cash to seller” amount was $100,000, the mortgage loan amount $75,000, and the \"cash from borrower” amount $25,000, then Foley would write Reed a check for $75,000 and Reed would sign a disbursement authorization reducing her proceeds by the remaining $25,000. . Reed pleaded guilty to 40 counts of wire fraud and 13 counts of money laundering, and was sentenced to 18 months' incarceration. Robbins pleaded guilty to 24 counts of misprision of a felony, 18 U.S.C. § 4, and was sentenced to eight months’ home confinement. . See United States v. Acosta-Colón, 741 F.3d 179, 192-93 (1st Cir.2013) (‘‘[T]he already high bar for plain error becomes even higher when dealing with an unpreserved sufficiency-of-the-evidence claim.”); United States v." }, { "docid": "20512098", "title": "", "text": "saw the evidence differently and found Foley guilty on all counts. The case then proceeded to sentencing, where the district court imposed a below-Guidelines sentence of 72 months’ incarceration and also ordered restitution in the amount of $2,198,204. This appeal followed. II. A. Sufficiency of the Evidence 1. Wire Fraud Foley first contends that the evidence was insufficient as to all but five of the 33 wire fraud counts. With respect to the seven counts arising from unsigned HUD-1 forms, Foley contends that without a signature there was no misrepresentation and thus no wire fraud. . Because two lending companies, Taylor, Bean & Whitaker and Fremont, nevertheless extended loans based on these unsigned HUD-1 forms, Foley further argues that there was also insufficient evidence as to the 21 counts involving signed HUD-ls sent to these companies, reasoning that the presence or absence of a signature was not material to the lenders’ decisionmaking. Although the parties do not dispute that Foley moved for acquittal on the wire fraud counts under Fed.R.Crim.P. 29 both at the close of the government’s case and after the trial, they nevertheless disagree as to the proper standard of review for this claim. Under our precedent, although a general sufficiency-of-the-evidence objection preserves all possible sufficiency arguments, a motion raising only specific sufficiency arguments waives unenumerated arguments. United States v. Lyons, 740 F.3d 702, 716 (1st Cir.2014); United States v. Marston, 694 F.3d 131, 134 (1st Cir.2012). We have suggested that a general sufficiency objection accompanied by specific objections preserves all possible sufficiency objections. See Marston, 694 F.3d at 135 (finding “good reason in case of doubt” to treat such motions as general, because “[i]t is helpful to the trial judge to have specific concerns explained even where a general motion is made; and to penalize the giving of examples, which might be understood as abandoning all other grounds, discourages defense counsel from doing so and also creates a trap for the unwary defense lawyer”). At the close of the government’s case, Foley’s counsel moved for judgment of acquittal on all counts. Defense counsel then proceeded to state:" }, { "docid": "20512152", "title": "", "text": "Pratt, 568 F.3d 11, 18 (1st Cir.2009) (\"[T]he particularly stringent form of plain error review we apply to an unpreserved challenge to the sufficiency of the evidence asks whether the conviction resulted in a 'clear and gross injustice.' ” (citation omitted)). Other circuits, however, simply \"characterize the review as one for plain error only.” United States v. Luciano, 329 F.3d 1, 5 n. 6 (1st Cir.2003) (citing United States v. Morgan, 238 F.3d 1180, 1186 (9th Cir.2001); United States v. Villasenor, 236 F.3d 220, 222 (5th Cir.2000) (per curiam)). . Although Foley's brief focuses on the presence or absence of \"Mr. Foley’s signature” from the HUD-1 form, Foley does not argue that the HUD-ls signed by Sean Robbins as settlement agent were also insufficient because they did not contain Foley's signature. Rather, Foley’s challenge focuses solely 'on the seven HUD-ls in which the signature block was left altogether blank. . Again, however, Foley's challenge would likewise fail under plain error. See infra at 15. . Congress subsequently amended the statute in May 2009 to define \"proceeds” as \"any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of such activity.” 18 U.S.C. § 1956(c)(9); see also id.-§ 1957(f)(3) (incorporating § 1956’s definition of \"proceeds”). . We are not swayed by Foley’s argument that \"[t]he charged scheme was to quickly obtain fraudulent mortgage loans in order to pay Elizabeth Reed for the properties at 135 Neponset Avenue” and that under the language of the indictment \"[i]t was part of the scheme to defraud that Foley and [Reed] caused mortgage loan proceeds ... to be disbursed from Foley's bank account to [Reed].” Our focus is on the charged crimes and not on the overarching scheme. See Kennedy, 707 F.3d at 566 (“If the entire scheme had come to a halt upon [the defendants’] receipt of the funds, the defendants would still have been guilty of the crime of wire fraud — which illustrates that the subsequent disbursements to the shell corporations have no bearing on the completion of the crime of" }, { "docid": "20512103", "title": "", "text": "collected from the borrowers, and it was a lie about what was paid to the seller. [Foley] had those false HUD-ls sent to the clients. The lenders’ money was released based on those lies. That theory was amply supported by trial evidence showing that after each closing, Robbins gave Foley’s paralegal the unsigned HUD-ls to be sent to the lenders, which in turn accepted the forms and funded the loans. We accordingly reject Foley’s contention that the government’s case rested solely on the stroke of a pen. To the extent that Foley takes issue more broadly with what he characterizes as the government’s “claim! ] that the mere submission of an unsigned HUD-1 to a lender can be a fraudulent misrepresentation even though there is a required certification on the form,” he points to no cases imposing such a “certification” requirement under § 1343. On the contrary, we and other circuits have rejected comparable attempts to narrow the scope of analogous statutes. See United States v. Ayewoh, 627 F.3d 914, 922 (1st Cir.2010) (interpreting identical language in the bank fraud statute, 18 U.S.C. § 1344, and holding that “the misrepresentation element of § 1344 is fulfilled by any intentional act or statement by an individual that falsely indicates, explicitly or implicitly, that he has authority to withdraw money from a bank,” including the entry of a credit card number into a point-of-sale device); see also United States ex rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d 377, 390 (1st Cir.2011) (“So long as the statement in question is knowingly false when made, it matters not whether it is a certification, assertion, statement, or secret handshake; False Claims liability can attach.” (quoting United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166, 1172 (9th Cir.2006)) (internal quotation marks omitted)); United States v. Zwego, 657 F.2d 248, 250 (10th Cir.1981) (holding that 18 U.S.C. § 1014, criminalizing false statements in connection with loan and credit applications, extends to both written and oral statements); United States v. Sackett, 598 F.2d 739, 741-42 (2d Cir.1979) (same). We therefore find no clear and" }, { "docid": "20512112", "title": "", "text": "fraud generally requires payments of the kind implicated in Santos.” Id. Applying that contextual approach to this case, we find no merger problem. Instead, we agree with the government that this ease is akin to United States v. Kennedy, 707 F.3d 558 (5th Cir.2013), in which the Fifth Circuit held that the defendants’ transfer of fraudulently obtained mortgage loan funds to a co-conspirator’s shell corporations did not implicate Santos. The court explained that the crime of wire fraud was consummated upon the lenders’ transmission of the mortgage loan funds. Id. at 566. Unlike the Ponzi distributions in Van Alstyne, the subsequent transfer of funds to the shell corporations did not represent “ ‘mere payment’ of an expense of carrying on the wire fraud crime.” Id. at 567 (quoting Santos, 553 U.S. at 527, 128 S.Ct. 2020 (Stevens, J., concurring)). So, too, in this case. The crime of wire fraud was complete upon Foley’s receipt of the mortgage loan funds, and the subsequent transfer of funds to Reed did not represent payment of an expense of carrying on the fraud. We thus find no merger of crimes, and hence no reason to apply Santos’s narrower definition of “proceeds” as profits. B. Evidentiary Issues Foley next sets his sights on three of the district court’s adverse evidentiary rulings. Foley preserved all three challenges; our review is accordingly for abuse of discretion. United States v. Muñoz-Franco, 487 F.3d 25, 62 (1st Cir.2007). 1. Robbins’s Testimony Sean Robbins testified on direct examination that he had pleaded guilty to 24 counts of misprision of a felony. When asked to define “misprision,” Robbins responded: Misprision means that I had knowledge of crimes committed by Mr. Foley at the Law Office of Marc Foley; namely, mortgage fraud. It means I didn’t report those crimes to the authorities, and it also means that I concealed those crimes by having disbursement authorizations signed by Lisa Reed, which were essentially an agreement to conceal the nature of the transaction from the lenders. Defense counsel immediately objected and moved to strike this testimony. The district court denied this motion. Foley contends" }, { "docid": "20512100", "title": "", "text": "“But in reality, Judge, there is one very serious issue. And that is the government has failed to establish that the District of Massachusetts is the proper venue for this prosecution.” Foley’s post-trial motion for acquittal in turn stated that “[a] judgment of acquittal should be granted on Counts 1-33 [i.e., the wire fraud counts] as the government failed to prove proper venue in the District of Massachusetts.” Neither of these motions are the type of “general motion accompanied by examples” contemplated in Marston. Neither motion raised any issue other than venue, and .although the oral motion at the close of evidence might with some imagination be interpreted as treating venue as merely “one very serious issue” of many, the post-trial motion is not susceptible even to such liberal reading. We therefore treat Foley’s signature-based' sufficiency challenge as unpreserved, and review for clear and gross injustice only. Id. at 134; see also United States v. Upham, 168 F.3d 532, 537 (1st Cir.1999), cert. denied, 527 U.S. 1011, 119 S.Ct. 2353, 144 L.Ed.2d 249 (1999). We conclude that Foley’s claim fails to meet that stringent standard, which we have described as a particularly exacting variant of plain error review, although our conclu sion would be the same even under traditional, plain error. See United States v. Jones, 748 F.3d 64, 73 (1st Cir.2014). The elements of wire fraud under 18 U.S.C. § 1343 are “(1) a scheme or artifice to defraud using false or fraudulent premises; (2) the defendant’s knowing or willing participation in the scheme or artifice with the intent to defraud; and (3) the use of the interstate wires in furtherance of the scheme.” United States v. Appolon, 715 F.3d 362, 367 (1st Cir.2013). The false or fraudulent representation must also be material. Id. HUD-1-forms contain a signature block beneath the following certification by the settlement agent: “The HUD-1 Settlement Statement which I have prepared is a true and accurate account of this transaction. I have caused or will cause the funds to be disbursed in accordance with the statement.” By Foley’s account, “the government’s case was that Mr." }, { "docid": "20512119", "title": "", "text": "the recent economic recession.” Although Foley is correct that loss is not an element of wire fraud, we have recognized loss as probative of “a defendant’s knowledge or intent to commit fraud.” Muñoz-Franco, 487 F.3d at 62. “Thus, while an ultimate purpose of either causing some financial loss to another or bringing about some financial gain to oneself is not the essence of fraudulent intent, the knowledge that one’s actions are, in fact, bringing about such losses may demonstrate one’s intent to commit fraud.” Id. (internal quotation marks omitted) (citation omitted); see also, e.g., United States v. Foshee, 606 F.2d 111, 113 (5th Cir.1979) (“Fraudulent intent is supported by proof that [s]omeone was actually victimized by the fraud.” (internal quotation marks omitted) (citation omitted)). At Foley’s trial, former employees of the lending companies testified that but for the misrepresentations that buyers had brought money to the loan closings, the lenders would not have funded the mortgage loans. The jury could therefore infer that the lenders’ losses were a direct consequence of Foley’s mendacity and that Foley’s misrepresentations were intentional. Moreover, any prejudice resulting from this evidence was relatively nugatory, as the testimony focused on the financial consequences to the lending companies rather than on the more palpable consequences for homeowners. The district court therefore did not abuse its discretion in declining to exclude this evidence as irrelevant or unfairly prejudicial. C. Prosecutorial Misconduct Foley alleges two instances of prosecutorial misconduct during closing argument. As Foley objected to both remarks below, our review is de novo. United States v. Ayala-Garcia, 574 F.3d 5, 16 (1st Cir.2009). 1. Characterization of Robbins’s Testimony Foley first claims that the prosecutor misstated the testimony of Sean Robbins in his closing argument. Although “[t]he law is clear that a prosecutor’s reliance (or apparent reliance) upon matters not in evidence is improper,” United States v. Audi, 187 F.3d 125, 129 (1st Cir.1999), we find no inaccuracy in the challenged remarks and thus no misconduct. On direct examination, Robbins testified that he had “expressed concern” to Foley in March 2007 “over how the transactions were handled” and that" }, { "docid": "20512101", "title": "", "text": "conclude that Foley’s claim fails to meet that stringent standard, which we have described as a particularly exacting variant of plain error review, although our conclu sion would be the same even under traditional, plain error. See United States v. Jones, 748 F.3d 64, 73 (1st Cir.2014). The elements of wire fraud under 18 U.S.C. § 1343 are “(1) a scheme or artifice to defraud using false or fraudulent premises; (2) the defendant’s knowing or willing participation in the scheme or artifice with the intent to defraud; and (3) the use of the interstate wires in furtherance of the scheme.” United States v. Appolon, 715 F.3d 362, 367 (1st Cir.2013). The false or fraudulent representation must also be material. Id. HUD-1-forms contain a signature block beneath the following certification by the settlement agent: “The HUD-1 Settlement Statement which I have prepared is a true and accurate account of this transaction. I have caused or will cause the funds to be disbursed in accordance with the statement.” By Foley’s account, “the government’s case was that Mr. Foley’s signature was the fraud,” such that the only relevant statement was “the certification on the HUD-1 that Mr. Foley had collected cash from the buyer at the closing.” The prosecution did indeed allude in both its opening and closing arguments to the significance of the settlement agent’s signature, stating, e.g., that “by signing the HUD-ls for these loans, the defendant certified to the mortgage company that he did collect the funds” and that the “HUD-1 when it said I have or will disburse in accordance with this HUD-1 is patently false.” Nevertheless, the government advanced a broader theory than Foley suggests. Signed or unsigned, each of the HUD-ls misrepresented the amount of “cash from borrower,” falsely indicating that the borrower had brought some amount of cash to the closing when in fact no funds were ever transferred. In its closing argument, the prosecution accordingly described the HUD-1 form as a lie to the mortgage company when it was sent to the lender to get the funds released. It was a he about what was" }, { "docid": "20512102", "title": "", "text": "Foley’s signature was the fraud,” such that the only relevant statement was “the certification on the HUD-1 that Mr. Foley had collected cash from the buyer at the closing.” The prosecution did indeed allude in both its opening and closing arguments to the significance of the settlement agent’s signature, stating, e.g., that “by signing the HUD-ls for these loans, the defendant certified to the mortgage company that he did collect the funds” and that the “HUD-1 when it said I have or will disburse in accordance with this HUD-1 is patently false.” Nevertheless, the government advanced a broader theory than Foley suggests. Signed or unsigned, each of the HUD-ls misrepresented the amount of “cash from borrower,” falsely indicating that the borrower had brought some amount of cash to the closing when in fact no funds were ever transferred. In its closing argument, the prosecution accordingly described the HUD-1 form as a lie to the mortgage company when it was sent to the lender to get the funds released. It was a he about what was collected from the borrowers, and it was a lie about what was paid to the seller. [Foley] had those false HUD-ls sent to the clients. The lenders’ money was released based on those lies. That theory was amply supported by trial evidence showing that after each closing, Robbins gave Foley’s paralegal the unsigned HUD-ls to be sent to the lenders, which in turn accepted the forms and funded the loans. We accordingly reject Foley’s contention that the government’s case rested solely on the stroke of a pen. To the extent that Foley takes issue more broadly with what he characterizes as the government’s “claim! ] that the mere submission of an unsigned HUD-1 to a lender can be a fraudulent misrepresentation even though there is a required certification on the form,” he points to no cases imposing such a “certification” requirement under § 1343. On the contrary, we and other circuits have rejected comparable attempts to narrow the scope of analogous statutes. See United States v. Ayewoh, 627 F.3d 914, 922 (1st Cir.2010) (interpreting identical" }, { "docid": "20512138", "title": "", "text": "22, 39 (1st Cir.2014). Foley points out that in contrast to his 72-month sentence, “Lisa Reed, the mastermind of the scheme and the person who profited from it, received a sentence of 18 months,” while Sean Robbins was not incarcerated at all. Foley further avers that he was less culpable than the lawyer defendants in Appolon and Innarelli, both of whom also received 72-month sentences. While Foley’s involvement was limited to the submission of false HUD-ls over the course of several weeks, the defendant in Innarelli also prepared false title documents and did so as part of a conspiracy spanning three years. Similarly, the lawyer in Appolon falsified loan applications and purchase-and-sale agreements as well as HUD-ls. Foley’s proffered comparisons carry little weight. First, three of these other defendants — Robbins, Reed, and the Innarelli defendant — opted to plead guilty and are therefore dissimilarly situated to Foley. See Floyd, 740 F.3d at 39. Robbins and Reed also played different roles in the conspiracy: Robbins worked largely at Foley’s direction, while Reed, even if the “mastermind of the scheme,” was not a lawyer and therefore did not sully “the integrity and public trust in the bar,” a factor which the district court stressed in sentencing Foley. Although the lawyer defendant in Appolon did go to trial, we do not think that his additional misrepresentations made him so much more culpable as to render Foley’s equivalent sentence an abuse of discretion. More broadly, we reject Foley’s premise that because we upheld a different judge’s sentence for a more culpable defendant in an unrelated case, the same sentence is therefore an proposed congeners were sentenced by the same judge as Foley. As we stated in United States v. Saez, 444 F.3d 15, 19 (1st Cir.2006), when “different judges sentence] two defendants quite differently, there is no more reason to think that the first one was right than the second.” Moreover, we recognized that such comparisons raise significant “practical objections”: A single judge sentencing two defendants for the same offense has the information before him and knows his own reasoning. By contrast, to" }, { "docid": "20512135", "title": "", "text": "total loss of $3,239,204, corresponding to U.S.S.G. § 2B1.1(b)(1)(J)’s 18-level enhancement for losses between $2.5 million and $7 million. Even after the three reductions that Foley requests, which total $202,904, the loss figure would remain $3,036,300, well within the § 2B1.1(b)(1)(J) range. Foley offers no figure for the borrowers’ principal repayments; his suggestion that these repayments exceed $536,000, thereby bringing him into a lower Guidelines range, amounts to no more than mere speculation, which we need not credit on appeal. See Zannino, 895 F.2d at 17. Accordingly, Foley can show no prejudice, and hence no plain error, arising from the district court’s alleged miscalculations. Cf. Albanese, 287 F.3d at 229 (finding no prejudice because, even crediting defendant’s assignments of error, a reduction in criminal history score from six to four points would not change the defendant’s criminal history category and Guidelines range). ii. Sophisticated Means Enhancement Foley also raises a preserved challenge to the district court’s imposition of a two-level U.S.S.G. § 2B1.1(b)(10)(C) enhancement for an offense involving “sophisticated means.” We review the district court’s reading of § 2B1.1(b)(10)(C) de novo and its factual findings for clear error. United States v. Evano, 553 F.3d 109, 111 (1st Cir.2009). As defined'in the Guidelines, “sophisticated means” means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense. For example, in a telemarketing scheme, locating the main office of the scheme in one jurisdiction but locating soliciting operations in another jurisdiction ordinarily indicates sophisticated means. Conduct such as hiding assets or transactions, or both, through the use of fictitious entities, corporate shells, or offshore financial accounts also ordinarily indicates sophisticated means. U.S.S.G. § 2B1.1 cmt. n. 9(B). The enumerated examples are by no means exhaustive, and as other circuits have recognized, “the enhancement properly applies to conduct less sophisticated” than the examples. United States v. Jennings, 711 F.3d 1144, 1147 (9th Cir.2013) (collecting cases). Moreover, a “scheme may be sophisticated even if the individual elements taken alone are not.” Evano, 553 F.3d at 113. In addition to submitting fraudulent HUD-ls, Foley took the' fictitious down payments out" }, { "docid": "20512097", "title": "", "text": "authorization” form for each of the loan closings, reducing Reed’s sale proceeds by the amount of the purported down payment. When a lender required additional proof of a buyer’s down payment, Foley instructed Reed to prepare bogus checks indicating that the buyer had actually brought funds to the closing. Foley then directed his paralegal to draw a check from his IOLTA in the amount due from the borrower and to later redeposit that check as “cash from buyer,” creating the illusion that Foley had received money from the borrower. Foley was charged with 33 counts of wire fraud, 18 U.S.C. § 1343, and five counts of money laundering, id. § 1957, for his role in these transactions. At trial, Foley mounted a defense of “good faith” in the face of damning testimony from Robbins and Reed, both of whom testified against him pursuant to plea agreements. The crux of Foley’s defense was that he honestly believed that the money would be forthcoming from the buyers and that Robbins and Reed lacked credibility. The jury, however, saw the evidence differently and found Foley guilty on all counts. The case then proceeded to sentencing, where the district court imposed a below-Guidelines sentence of 72 months’ incarceration and also ordered restitution in the amount of $2,198,204. This appeal followed. II. A. Sufficiency of the Evidence 1. Wire Fraud Foley first contends that the evidence was insufficient as to all but five of the 33 wire fraud counts. With respect to the seven counts arising from unsigned HUD-1 forms, Foley contends that without a signature there was no misrepresentation and thus no wire fraud. . Because two lending companies, Taylor, Bean & Whitaker and Fremont, nevertheless extended loans based on these unsigned HUD-1 forms, Foley further argues that there was also insufficient evidence as to the 21 counts involving signed HUD-ls sent to these companies, reasoning that the presence or absence of a signature was not material to the lenders’ decisionmaking. Although the parties do not dispute that Foley moved for acquittal on the wire fraud counts under Fed.R.Crim.P. 29 both at the close" }, { "docid": "20512113", "title": "", "text": "carrying on the fraud. We thus find no merger of crimes, and hence no reason to apply Santos’s narrower definition of “proceeds” as profits. B. Evidentiary Issues Foley next sets his sights on three of the district court’s adverse evidentiary rulings. Foley preserved all three challenges; our review is accordingly for abuse of discretion. United States v. Muñoz-Franco, 487 F.3d 25, 62 (1st Cir.2007). 1. Robbins’s Testimony Sean Robbins testified on direct examination that he had pleaded guilty to 24 counts of misprision of a felony. When asked to define “misprision,” Robbins responded: Misprision means that I had knowledge of crimes committed by Mr. Foley at the Law Office of Marc Foley; namely, mortgage fraud. It means I didn’t report those crimes to the authorities, and it also means that I concealed those crimes by having disbursement authorizations signed by Lisa Reed, which were essentially an agreement to conceal the nature of the transaction from the lenders. Defense counsel immediately objected and moved to strike this testimony. The district court denied this motion. Foley contends that the district court abused its discretion in failing to strike this testimony as -unfairly prejudicial under Fed.R.Evid. 403. More specifically, Foley argues that “[i]t was not for Sean Robbins to inform [the jury] that Mr. Foley was guilty of mortgage fraud based on the facts as he knew them,” and that Robbins’s testimony was “particularly problematic” because Robbins, an attorney, “would be in a better position than the average person to know whether mortgage fraud had been committed.” We have made clear that “the fact of [a witness’s] guilty plea and the plea agreement properly may be elicited to dampen the effect of an anticipated attack on the witness’s credibility.” United States v. Dworken, 855 F.2d 12, 30 (1st Cir.1988); see also United States v. Richardson, 421 F.3d 17, 40-41 (1st Cir.2005). We have accordingly upheld the admission of evidence concerning a co-conspirator’s guilty plea, even though it similarly invites an inference of the defendant’s- guilt, when such evidence is accompanied by appropriate limiting instructions. See Dworken, 855 F.2d at 29-30; see also United" } ]

[ { "docid": "22641675", "title": "", "text": "patent. An unpatentable article, like an article on which the patent has expired, is in the public domain and may be made and sold by whoever chooses to do so. What Sears did was to copy Stiffens design and to sell lamps almost identical to those sold by Stiffel. This it had every right to do under the federal patent laws. That Stiffel originated the pole lamp and made it popular is immaterial. “Sharing in the goodwill of an article unprotected by patent or trade-mark is the exercise of a right possessed by all — and in the free exercise of which the consuming public is deeply interested.” Kellogg Co. v. National Biscuit Co., supra, 305 U. S., at 122. To allow a State by use of its law of unfair competition to prevent the copying of an article which rep resents too slight an advance to be patented would be to permit the State to block off from the public something which federal law has said belongs to the public. The result would be that while federal law grants only 14 or 17 years’ protection to genuine inventions, see 35 U. S. C. §§ 154, 173, States could allow perpetual protection to articles too lacking in novelty to merit any patent at all under federal constitutional standards. This would be too great an encroachment on the federal patent system to be tolerated. Sears has been held liable here for unfair competition because of a finding of likelihood of confusion based only on the fact .that Sears’ lamp was copied from Stiffel’s unpatented lamp and that consequently the two looked exactly alike. Of course there could be “confusion” as to who had manufactured these nearly identical articles. But mere inability of the public to tell two identical articles apart is not enough to support an injunction against copying or an award of damages for copying that which the federal patent laws permit to be copied. Doubtless a State may, in appropriate circumstances, require that goods, whether patented or unpatented, be labeled or that other precautionary steps be taken to prevent" } ]

[ { "docid": "2825151", "title": "", "text": "take from the goods ... something of substantial value.” Id. at 933, 140 USPQ at 582. In addition to registration under section 2 of the Lanham Act, color marks have been protected by courts under section 43(a) of the Act and under state laws of unfair competition. For example, in Artus Corp. v. Nordic Co., Inc., 512 F.Supp. 1184, 213 USPQ 568 (W.D.Pa.1981), Artus adopted an arbitrary color scheme for its shims utilizing a different color to represent each of fourteen shim thicknesses. Nordic, a competitor, copied the color scheme. The court rejected Nordic’s argu ment that Artus’ color scheme should be denied protection because of functionality and the risk of monopoly, and granted an injunction to prevent a likelihood of confusion in the marketplace. The colors of cube puzzles have been protected, when such colors were found to have acquired a secondary meaning and were primarily non-functional in nature. See, e.g., Ideal Toy Co. v. Plawner Toy Mfg. Corp., 215 USPQ 610 (D.N.J.1981), modified, 685 F.2d 78, 216 USPQ 102 (3d Cir.1982). When these requirements were not met, protection has been denied. See, e.g., Olay Co., Inc. v. Cococare Products, Inc., 218 USPQ 1028, 1045 (S.D.N.Y.), aff'd mem. 742 F.2d 1439 (2d Cir.1983) (pink color of beauty lotion had not acquired a secondary meaning); Water Gremlin Co. v. Ideal Fishing Float Co., Inc., 401 F.Supp. 809, 812, 188 USPQ 388, 391 (D.Minn.1975) (color coded fishing floats had not acquired a secondary meaning). Trademark status of the colors of pharmaceutical products has been vigorously litigated, and although some judicial decisions proceeded on a theory of “palming off”, many have afforded relief against imitation of capsule or tablet colors when the facts established that such features were non-functional and had acquired a secondary meaning in the marketplace. See, e.g., Ciba-Geigy Corp. v. Bolar Pharmaceutical Co., Inc., 547 F.Supp. 1095, 215 USPQ 769 (D.N.J.1982), aff'd per curiam, 719 F.2d 56 (3d Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1444, 79 L.Ed.2d 763 (1984), grant of perm. inj. aff'd, 747 F.2d 844, 224 USPQ 349 (3d Cir.1984). Following this pattern the Board" }, { "docid": "547294", "title": "", "text": "so long as attachment occurs before the junior competitor enters the market. Wright, supra at 318, citing Barton v. Rex-Oil Co., 2 F.2d 402, 405 (3d Cir. 1924). The word secondary refers only to second in time, for the additional association with source meaning often overtakes the original or first-in-time meaning of the symbol, mark, or device. Levi-Strauss & Co. v. Blue Bill, Inc., 632 F.2d 817, 820 (9th Cir. 1980). In the instant case, several factors support plaintiff’s claim of secondary meaning. First, viewing the above factors, Artus has continuously utilized the same, original, plain, unmarked color-coded system for its shims from 1940 to the present; it has a large customer following of approximately 2500 to 3000 customers and has sold more than 40,000,000 plain, unmarked color-coded plastic shims in the marketplace; it has and continues to advertise extensively both in the United States and abroad; and its advertisements essentially relate to the color system as a means of identification. Secondly, Artus has been successful in preventing others from marketing and selling identical plain, unmarked colored shims on at least three occasions. Alert Manufacturing and Chicago Wilcox, both competitors of plaintiff, have agreed through consent judgments and settlement agreements to distinguish their products by placing stars and dots on their shims. A third manufacturer, General Gasket, completely changed its color scheme and still remains competitive. Lastly, purchasers of shims have periodically referred complaints to Artus concerning the quality of shims which they erroneously believed, based upon color observation only, to be plaintiffs product. Of course, the fact that two competitors use similar or even identical marks for their respective products, and that buyers are likely to become confused, does not establish secondary meaning. Miscellaneous, Inc. v. Klein’s Fashions, Inc., 452 Pa. 62, 305 A.2d 22 (1973). However, if a buyer associates a mark with the plaintiff, such as plain, unmarked colored shims with Artus, secondary meaning is present and the law will afford protection. Gum, Inc. v. Gumakers of America, Inc., 136 F.2d 957, 959 (3d. Cir. 1943). In the case sub judice, there is evidence that shim customers," }, { "docid": "2825150", "title": "", "text": "not available to other producers of fibrous glass insulation. To the contrary, when the arbitrary color arrangement distinguishes the goods from other sources of the same product, as in In re AFA Corp., 196 USPQ 772 (TTAB 1977), or where a variety of color designs has been utilized by other producers, courts have viewed this as evidence that such design features are primarily non-functional in nature. See In re Tec Torch Co., Inc., 143 USPQ 124 (TTAB 1964) (colors of cables for welding torch serve as trademark); Ex parte Ohio Knife Co., 117 USPQ 449 (Comm’r Pat.1958) (color markings on knife handles may serve as indications of origin). As with all trademarks, practices in the industry and competitive needs may require recognition, as discussed in In re Mogen David Wine Corp., 328 F.2d 925, 140 USPQ 575 (CCPA 1964) (Rich, J., concurring). By analogy to the shape of the wine bottle in Mogen David, depriving the public of the right to color fibrous residential insulation “pink” “(1) does not hinder competition and (2) does not take from the goods ... something of substantial value.” Id. at 933, 140 USPQ at 582. In addition to registration under section 2 of the Lanham Act, color marks have been protected by courts under section 43(a) of the Act and under state laws of unfair competition. For example, in Artus Corp. v. Nordic Co., Inc., 512 F.Supp. 1184, 213 USPQ 568 (W.D.Pa.1981), Artus adopted an arbitrary color scheme for its shims utilizing a different color to represent each of fourteen shim thicknesses. Nordic, a competitor, copied the color scheme. The court rejected Nordic’s argu ment that Artus’ color scheme should be denied protection because of functionality and the risk of monopoly, and granted an injunction to prevent a likelihood of confusion in the marketplace. The colors of cube puzzles have been protected, when such colors were found to have acquired a secondary meaning and were primarily non-functional in nature. See, e.g., Ideal Toy Co. v. Plawner Toy Mfg. Corp., 215 USPQ 610 (D.N.J.1981), modified, 685 F.2d 78, 216 USPQ 102 (3d Cir.1982). When these" }, { "docid": "547293", "title": "", "text": "and other colors are substituted, nothing of substantial value is lost in the goods themselves. SK&F Co. v. Premo Pharmaceutical Lab., 625 F.2d 1055, 1964 (3d Cir. 1980); Restatement of Torts, Section 742, Comment a (1938). We therefore conclude, as a matter of law, that Artus’ plain, unmarked colors are nonfunctional and entitled to protection if secondary meaning has attached. (B) The issue of secondary meaning is generally a factual one and often a matter of inference. John Wright, Inc. v. Casper Corp., supra, 419 F.Supp. 292, 317-318. Proof of secondary meaning is difficult since there are no precise guidelines and no single determining factor. Each case must be decided on its own facts with considerations given to such elements as: (a) length and exclusivity of use, (b) sales level, (c) extent of advertising and promotion, and (d) similarity of the markets or products in the likelihood of causing confusion. American Footwear Corp. v. Genera] Footwear Company, 609 F.2d 655, 665 (2d Cir. 1979). No particular length of time is required to establish secondary meaning so long as attachment occurs before the junior competitor enters the market. Wright, supra at 318, citing Barton v. Rex-Oil Co., 2 F.2d 402, 405 (3d Cir. 1924). The word secondary refers only to second in time, for the additional association with source meaning often overtakes the original or first-in-time meaning of the symbol, mark, or device. Levi-Strauss & Co. v. Blue Bill, Inc., 632 F.2d 817, 820 (9th Cir. 1980). In the instant case, several factors support plaintiff’s claim of secondary meaning. First, viewing the above factors, Artus has continuously utilized the same, original, plain, unmarked color-coded system for its shims from 1940 to the present; it has a large customer following of approximately 2500 to 3000 customers and has sold more than 40,000,000 plain, unmarked color-coded plastic shims in the marketplace; it has and continues to advertise extensively both in the United States and abroad; and its advertisements essentially relate to the color system as a means of identification. Secondly, Artus has been successful in preventing others from marketing and selling identical plain," }, { "docid": "547296", "title": "", "text": "as well as manufacturers, associate plain, unmarked colored shims with Artus. Artus and Nordic agree that plaintiff continues to be the exclusive source of plain, unmarked colored plastic shims. The deposition testimonies of Kaercher, Carlin and Mishne attest to recognition of specific plain, unmarked colored shims as emanating from Artus. Nordic admits that it intentionally adopted the Artus colors in plain, unmarked style to become successful in the marketplace. This intentional simulation by Nordic supports plaintiffs argument that Artus succeeded in creating consumer recognition and goodwill for its product which Nordic desired to appropriate. RJR Foods, Inc. v. White Rock Corp., 603 F.2d 1058, 1060 (2d Cir. 1979); Socony-Vacuum Oil Co. v. Rosen, 108 F.2d 632, 636 (6th Cir. 1940). We hold that Artus’ 14 unmarked colors have acquired a secondary meaning in the relevant market. (C) Even if we assume that plaintiff’s color scheme is functional, a conclusion which we reject, Nordic’s intentional imitation supports at least a presumption that the similarity will cause customer confusion. Harold F. Ritchie, Inc. v. Chesebrough-Pond’s, Inc., 281 F.2d 755, 758-59 (2d Cir. 1960). Section 729 of the Restatement of Torts, Comment f, at 594-95, provides: A latecomer who deliberately copies the dress of his competitors already in the field, must at least prove that his effort has been futile. * * * But such an intent raises a presumption that customers will be deceived. See also, My-T Fine Corp. v. Samuels, 69 F.2d 76, 77 (2d Cir. 1934). The test for customer confusion is not whether the products can be differentiated when subjected to a side-by-side comparison, but whether they create the same general overall impression. Alfred Dunhill of London, Inc. v. Kasser Distillers Products Corp., 350 F.Supp. 1341 (E.D.Pa.1972), aff’d, 480 F.2d 917 (3d Cir. 1973); Harold F. Ritchie, Inc. v. Chesebrough-Pond’s, Inc., 281 F.2d 755, 762. If the similarities in appearance are unduly confusing to the average customer, the defendant has trespassed upon the plaintiff’s rights unless he has taken reasonable steps to indicate the source of the product to prevent deception. Confusion may consist of misleading customers or potential" }, { "docid": "547287", "title": "", "text": "640 (2d Cir. 1979); Gum, Inc. v. Gumakers of America, Inc., 136 F.2d 957, 959 (3d Cir. 1943). We now move to the crux of the dispute — unfair competition under Pennsylvania law. (A) Pennsylvania jurisprudence with respect to unfair competition and the Lanham Act, 15 U.S.C. § 1125(a), are identical except for the federal requirement of interstate commerce, an element not here in dispute. The test for unfair competition is the existence of a secondary meaning and the likelihood of confusion as to the source of the product. Donsco, Inc. v. Casper Corp., 587 F.2d 602, 605 (3d Cir. 1978). Unfair competition goes to the question of marketing, not to the question of manufacturing. One may be within his legal rights in producing an item and yet act extralegally if the item is marketed in such a way that confusion is generated as to the source of the goods. B. H. Bunn Co. v. AAA Replacement Part Co., 451 F.2d 1254, 1263 (5th Cir. 1971); McCarthy, Trademarks and Unfair Competition, Section 8:1, at 230-31 (1973). Artus has the burden of proving that its plain, unmarked color scheme is entitled to protection against imitation, and the Nordic’s plain, unmarked color scheme is so similar that confusion is likely. Stroehmann Bros. v. Manheck Baking Co., 331 Pa. 96, 200 A. 97 (1938). Artus is not required to prove actual palming-off; a showing of likelihood of confusion is sufficient. Parkway Baking Co. v. Freihofer Baking Co., 255 F.2d 641, 649 (3d Cir. 1958). To establish a claim for unfair competition under Pennsylvania law, two elements must be present: (1) the public’s recognition that a plaintiff’s mark or feature is identified with his product and distinguishable from those of others, i. e., a secondary meaning, and (2) activities that cause a likelihood of confusion among relevant purchasers. L’Aiglon Apparel, Inc. v. Lana Labelle, Inc., 214 F.2d 649 (3d Cir. 1954). The first element can be shown primarily in two ways: (a) the mark is inherently distinctive, (i. e., trademark in the classic sense), or (b) even if not inherently distinctive, the feature has" }, { "docid": "547300", "title": "", "text": "users, who are not generally the specific purchasing agents, may and often does lead to confusion. Telechron, Inc. v. Telecon Corp., 97 F.Supp. 131 (D.C.Del.1951), aff’d, 198 F.2d 903 (3d Cir. 1952). Without adequate labeling, Nordic’s shims appear identical even though the parties agree that they differ in material properties. Nordic argues that it is not obligated to protect the negligent and unattentive purchaser from confusion resulting from indifference, or make the market foolproof. Kellogg Co. v. Nat’l Biscuit Co., 305 U.S. 111, 119, 59 S.Ct. 109, 113, 83 L.Ed. 73 (1938). We agree with the principle but defendant’s reliance on West Point Manufacturing Co. v. Detroit Stamping Co., 222 F.2d 581, 595-96 (6th Cir. 1955), and Gum, Inc. v. Gumakers of America, Inc., supra, in support of its argument is misplaced. In West Point, the court determined that a purchaser using ordinary care could easily discover the source of the product bought or used because the defendants’ tradename was impressed directly on the toggle clamp; thus there could be no question as to source regardless of storage or use. . West Point, supra at 595-596. In Gum, Inc. the court concluded that any ordinary buyer could not become reasonably confused because the wrappers, sufficiently distinguishable, would normally be removed immediately before use, i. e., chewing. Id. at 958-59. In the instant case, Nordic has arranged the labeling of its package in such a way so as to strikingly resemble the overall appearance of the Artus package. Each is housed in a see-through package — Nordic in plastic and Artus in cellophane. Both parties use a similar price list and the color identification charts bear the same colors with similar “slogans” indicating the relationship of color to thickness. When labeling and marketing techniques are similar for identical products, the likelihood of confusion is greater. Another important factor in the consideration of the likelihood of confusion is the deposition testimony relating to actual confusion by purchasers who erroneously identified plain, unmarked colored shims as originating from Artus. Proof that confusion has actually occurred is highly persuasive on the question of whether" }, { "docid": "547291", "title": "", "text": "trademark. However, when it is applied to goods in some definite, arbitrary manner or design, it can so function if it is used in the manner of a trademark and it is recognized in the industry as identifying and distinguishing the source of the product in connection with which it is used. In re AFA Corp., 196 U.S.P.Q. 772, 774-75 (T.T. & A.Bd. 1977). Moreover, when a feature of the item is arbitrary, the feature may become a trademark even though it serves a useful purpose. Ives Labortories, Inc. v. Darby Drug Co., Inc., 601 F.2d 631 (2d Cir. 1977); Truck Equipment Service Co. v. Fuehauf Corp., 536 F.2d 1210 (8th Cir.), cert. denied, 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139 (1976). As in Ives, we reject Nordic’s argument that Artus’ system should be denied protection because of functionality and the risk of monopoly. The use of a specific color scheme by Artus bears no relationship to the shim’s ability to perform as a spacer in milling machinery. A shim can be any color. Any color can designate thickness. In fact, Nordic admits that other manufacturers of color-coded shims have distinguished their products from Artus and yet remain competitive. Nordic claims that Artus conceded functionality when it labeled its color identification chart and related advertising materials with the slogan, “The Color Tells The Thickness.” This slogan is not dispositive of the functionality issue, however, for an examination of the color charts and marketing literature of the parties and other competitors reveals that each has declared that the various colors indicate the thickness of the shim: Artus — “The Color Tells The Thickness.” (Defendant’s Exhibit Nos. 2, 3) Nordic — “Color Identifies The Shim’s Thickness.” (Defendant’s Exhibit No. 5) Alert — “Pick The Thickness You Want— By Color.” (Plaintiff’s Exhibit No. 3) General Gasket — “Pick The Thickness You Want By Color.” (Plaintiff’s Exhibit No. 2) A shim which is colored in accordance with plaintiff’s scheme will facilitate selection for appropriate use only if one is accustomed to Artus’ colors as denoting thickness, but if plaintiff’s scheme is eliminated" }, { "docid": "22760652", "title": "", "text": "copy that article. To forbid copying would interfere with the federal policy, found in Art. I, § 8, cl. 8, of the Constitution and in the implementing federal statutes, of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain. Here Day-Brite’s fixture has been held not to be entitled to a design or mechanical patent. Under the federal pat ent laws it is, therefore, in the public domain and can be copied in every detail by whoever pleases. It is true that the trial court found that the configuration of Day-Brite’s fixture identified Day-Brite to the trade because the arrangement of the ribbing had, like a trademark, acquired a “secondary meaning” by which that particular design was associated with Day-Brite. But if the design is not entitled to a design patent or other federal statutory protection, then it can be copied at will. As we have said in Sears, while the federal patent laws prevent a State from prohibiting the copying and selling of unpatented articles, they do not stand in the way of state law, statutory or decisional, which requires those who make and sell copies to take precautions to identify their products as their own. A State of course has power to impose liability upon those who, knowing that the public is relying upon an original manufacturer’s reputation for quality and integrity, deceive the public by palming off their copies as the original. That an article copied from an unpatented article could be made in some other way, that the design is “nonfunctional” and not essential to the use of either article, that the configuration of the article copied may have a “secondary meaning” which identifies the maker to the trade, or that there may be “confusion” among purchasers as to which article is which or as to who is the maker, may be relevant evidence in applying a State’s law requiring such precautions as labeling; however, and regardless of the copier’s motives, neither these facts nor any others can furnish a basis for imposing liability for or prohibiting the" }, { "docid": "547288", "title": "", "text": "(1973). Artus has the burden of proving that its plain, unmarked color scheme is entitled to protection against imitation, and the Nordic’s plain, unmarked color scheme is so similar that confusion is likely. Stroehmann Bros. v. Manheck Baking Co., 331 Pa. 96, 200 A. 97 (1938). Artus is not required to prove actual palming-off; a showing of likelihood of confusion is sufficient. Parkway Baking Co. v. Freihofer Baking Co., 255 F.2d 641, 649 (3d Cir. 1958). To establish a claim for unfair competition under Pennsylvania law, two elements must be present: (1) the public’s recognition that a plaintiff’s mark or feature is identified with his product and distinguishable from those of others, i. e., a secondary meaning, and (2) activities that cause a likelihood of confusion among relevant purchasers. L’Aiglon Apparel, Inc. v. Lana Labelle, Inc., 214 F.2d 649 (3d Cir. 1954). The first element can be shown primarily in two ways: (a) the mark is inherently distinctive, (i. e., trademark in the classic sense), or (b) even if not inherently distinctive, the feature has acquired a secondary meaning in the minds of customers. John Wright, Inc. v. Casper Corp., 419 F.Supp. 292, 317 (E.D.Pa.1976), modified on other grounds, 587 F.2d 602 (3d Cir. 1978); McCarthy, supra, Section 15:4, at 524. Nordic contends, and Artus concedes, that Artus’ original decision to color its various shims was functional. The coloring was, and still is employed to denote thickness. It decreases the probability of “thickness” error and saves the user set-up time. Since coloring affects handling, it is in this context functional. Section 742 of the Restatement of Torts defines functionality as follows: A feature of the goods is functional, under the rule stated in 741, if it affects their purpose, action or performance, or the facility or economy of processing, handling or using them; it is non-functional if it does not have any of such effects. If the right to color was at issue, Artus concedes that Nordic would be entitled to employ colors to denote shim thickness. That concession is mandated by Ives Laboratories, Inc. v. Darby Drug Co., Inc.," }, { "docid": "547295", "title": "", "text": "unmarked colored shims on at least three occasions. Alert Manufacturing and Chicago Wilcox, both competitors of plaintiff, have agreed through consent judgments and settlement agreements to distinguish their products by placing stars and dots on their shims. A third manufacturer, General Gasket, completely changed its color scheme and still remains competitive. Lastly, purchasers of shims have periodically referred complaints to Artus concerning the quality of shims which they erroneously believed, based upon color observation only, to be plaintiffs product. Of course, the fact that two competitors use similar or even identical marks for their respective products, and that buyers are likely to become confused, does not establish secondary meaning. Miscellaneous, Inc. v. Klein’s Fashions, Inc., 452 Pa. 62, 305 A.2d 22 (1973). However, if a buyer associates a mark with the plaintiff, such as plain, unmarked colored shims with Artus, secondary meaning is present and the law will afford protection. Gum, Inc. v. Gumakers of America, Inc., 136 F.2d 957, 959 (3d. Cir. 1943). In the case sub judice, there is evidence that shim customers, as well as manufacturers, associate plain, unmarked colored shims with Artus. Artus and Nordic agree that plaintiff continues to be the exclusive source of plain, unmarked colored plastic shims. The deposition testimonies of Kaercher, Carlin and Mishne attest to recognition of specific plain, unmarked colored shims as emanating from Artus. Nordic admits that it intentionally adopted the Artus colors in plain, unmarked style to become successful in the marketplace. This intentional simulation by Nordic supports plaintiffs argument that Artus succeeded in creating consumer recognition and goodwill for its product which Nordic desired to appropriate. RJR Foods, Inc. v. White Rock Corp., 603 F.2d 1058, 1060 (2d Cir. 1979); Socony-Vacuum Oil Co. v. Rosen, 108 F.2d 632, 636 (6th Cir. 1940). We hold that Artus’ 14 unmarked colors have acquired a secondary meaning in the relevant market. (C) Even if we assume that plaintiff’s color scheme is functional, a conclusion which we reject, Nordic’s intentional imitation supports at least a presumption that the similarity will cause customer confusion. Harold F. Ritchie, Inc. v. Chesebrough-Pond’s, Inc., 281" }, { "docid": "547284", "title": "", "text": "distributing and selling plain, unmarked color-coded shims, identical in appearance to those manufactured, advertised and sold by Artus, with the intention of trading upon the goodwill established by Artus in the marketplace. Artus further contends that its plain, unmarked color-coded system is nonfunctional, has acquired secondary meaning, and is thereby deserving of protection as a matter of law. Nordic rejoins that it has a legal right to identical use of plaintiff’s plain color-coded system since the colors are functional and Nordic has adequately labeled its shims to designate their origin and to eliminate any possible likelihood of confusion. On September 17, 1980, Nordic moved for summary judgment. Presently before the court is Nordic’s motion for summary judgment and Artus’ renewed motion for judgment. For the reasons hereinafter set forth, defendant’s motion will be denied and plaintiff’s renewed motion for summary judgment will be granted in part. II. Discussion This case presents the question of whether Nordic has been and continues to engage in acts of unfair competition against Artus by manufacturing and selling plain, unmarked color-coded shims that are virtually identical in colors and sizes to those manufactured and sold by Artus. Before reaching plaintiff’s claims of unfair competition and false advertising under the Lanham Act and state law, we will briefly review the well-established federal jurisprudence pertaining to the right to copy goods or products of another. Federal law permits Nordic to manufacture and sell plain, unmarked color-coded shims which are identical in every detail to those manufactured and sold by Artus. Artus’ plain, unmarked color-coded system is neither patented nor copyrighted and thus entirely in the public domain, and Nordic has the right, if it chooses, to copy. Sears, Roebuck & Co. v. Stiffel, 376 U.S. 225, 231-32, 84 S.Ct. 784, 788-89, 11 L.Ed.2d 661 (1964). This principle obtains even if the system became associated with Artus in the public’s mind prior to Nordic’s entry in the field in 1974. As the Supreme Court. stated in Compco Corp. v. Day-Brite Lighting, Inc.: That an article copied from an unpatented article could be made in some other way, that" }, { "docid": "547301", "title": "", "text": "regardless of storage or use. . West Point, supra at 595-596. In Gum, Inc. the court concluded that any ordinary buyer could not become reasonably confused because the wrappers, sufficiently distinguishable, would normally be removed immediately before use, i. e., chewing. Id. at 958-59. In the instant case, Nordic has arranged the labeling of its package in such a way so as to strikingly resemble the overall appearance of the Artus package. Each is housed in a see-through package — Nordic in plastic and Artus in cellophane. Both parties use a similar price list and the color identification charts bear the same colors with similar “slogans” indicating the relationship of color to thickness. When labeling and marketing techniques are similar for identical products, the likelihood of confusion is greater. Another important factor in the consideration of the likelihood of confusion is the deposition testimony relating to actual confusion by purchasers who erroneously identified plain, unmarked colored shims as originating from Artus. Proof that confusion has actually occurred is highly persuasive on the question of whether confusion is likely to occur in the future. The mere possibility of confusion is insufficient. There must be probability or likelihood of confusion to support a claim for unfair competition. John Wright, Inc., supra, 419 F.Supp. 292 at 319. In the instant matter, Woodbury & Co. of Oregon, Metal Services of Illinois, and Federal Steel of Pennsylvania, have complained to Artus concerning the quality of shims. which they believed, based upon observation, were manufactured by plaintiff, but in fact, were purchased from Nordic. While the evidence of actual confusion is not overwhelming in quantity, when we consider Nordic’s intent to imitate, and the parallel marketing methods, and the similarity in labeling, and the substantial similarities between the products, there is sufficient evidence to conclude that a probability of confusion does exist. Since there are no genuine issues of material fact with respect to the issues raised by the parties, the motion of The Artus Corporation for summary judgment will be treated as a motion for partial summary adjudication and will be granted on the issue" }, { "docid": "547283", "title": "", "text": "instituted this action on December 23, 1977, alleging infringement of proprietary rights due to unfair competition in the manufacture and sale of plain, unmarked color-coded shims, gasket shim stock and spacers. On January 24, 1978, Nordic answered and denied infringement and simultaneously set forth affirmative defenses and a counterclaim. In defense, Nordic contends that plaintiff’s plain color-coded system for shims is available for privileged imitation and thus not entitled to protection, and also that the action is barred by unclean hands and laches. In its counterclaim, defendant alleges that Artus has unlawfully attempted to monopolize the trade in the industry. Following discovery, Artus moved for summary judgment. The court denied the motion on January 31, 1980, due to the existence of a genuine issue of a material fact. Thereafter, Artus amended its complaint and additionally charged Nordic with acts of. unfair competition and deceptive trade practice under Section 43(a) of the Lanham Act. 15 U.S.C. § 1125(a). Specifically, Artus alleges that Nordic has been and continues to engage in unfair trade practices and competition by distributing and selling plain, unmarked color-coded shims, identical in appearance to those manufactured, advertised and sold by Artus, with the intention of trading upon the goodwill established by Artus in the marketplace. Artus further contends that its plain, unmarked color-coded system is nonfunctional, has acquired secondary meaning, and is thereby deserving of protection as a matter of law. Nordic rejoins that it has a legal right to identical use of plaintiff’s plain color-coded system since the colors are functional and Nordic has adequately labeled its shims to designate their origin and to eliminate any possible likelihood of confusion. On September 17, 1980, Nordic moved for summary judgment. Presently before the court is Nordic’s motion for summary judgment and Artus’ renewed motion for judgment. For the reasons hereinafter set forth, defendant’s motion will be denied and plaintiff’s renewed motion for summary judgment will be granted in part. II. Discussion This case presents the question of whether Nordic has been and continues to engage in acts of unfair competition against Artus by manufacturing and selling plain, unmarked" }, { "docid": "547290", "title": "", "text": "supra, 601 F.2d at 643. “Where the features are functional there is normally no right to protection or relief .... If the particular feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright .... ” However, Artus objects to the use of a particular combination of unmarked colors, without adequate distinguishing characteristics or labeling, and not to the use of colors, per se. Artus’ use of plain, unmarked colors serves to distinguish its product from that of other manufacturers and sellers, just as the use of Artus’ colors with the application of dots and stars distinguish the products of other manufacturers from Artus. Artus contends that the particular selection and arbitrary application of 14 varying unmarked colors is nonfunctional and, over the course of 25 years, it has developed a secondary meaning in the minds of its customers. We agree. Color alone or indiscriminately applied to the overall configuration of a product may not function as a trademark. However, when it is applied to goods in some definite, arbitrary manner or design, it can so function if it is used in the manner of a trademark and it is recognized in the industry as identifying and distinguishing the source of the product in connection with which it is used. In re AFA Corp., 196 U.S.P.Q. 772, 774-75 (T.T. & A.Bd. 1977). Moreover, when a feature of the item is arbitrary, the feature may become a trademark even though it serves a useful purpose. Ives Labortories, Inc. v. Darby Drug Co., Inc., 601 F.2d 631 (2d Cir. 1977); Truck Equipment Service Co. v. Fuehauf Corp., 536 F.2d 1210 (8th Cir.), cert. denied, 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139 (1976). As in Ives, we reject Nordic’s argument that Artus’ system should be denied protection because of functionality and the risk of monopoly. The use of a specific color scheme by Artus bears no relationship to the shim’s ability to perform as a spacer in milling machinery. A shim can be any" }, { "docid": "547292", "title": "", "text": "color. Any color can designate thickness. In fact, Nordic admits that other manufacturers of color-coded shims have distinguished their products from Artus and yet remain competitive. Nordic claims that Artus conceded functionality when it labeled its color identification chart and related advertising materials with the slogan, “The Color Tells The Thickness.” This slogan is not dispositive of the functionality issue, however, for an examination of the color charts and marketing literature of the parties and other competitors reveals that each has declared that the various colors indicate the thickness of the shim: Artus — “The Color Tells The Thickness.” (Defendant’s Exhibit Nos. 2, 3) Nordic — “Color Identifies The Shim’s Thickness.” (Defendant’s Exhibit No. 5) Alert — “Pick The Thickness You Want— By Color.” (Plaintiff’s Exhibit No. 3) General Gasket — “Pick The Thickness You Want By Color.” (Plaintiff’s Exhibit No. 2) A shim which is colored in accordance with plaintiff’s scheme will facilitate selection for appropriate use only if one is accustomed to Artus’ colors as denoting thickness, but if plaintiff’s scheme is eliminated and other colors are substituted, nothing of substantial value is lost in the goods themselves. SK&F Co. v. Premo Pharmaceutical Lab., 625 F.2d 1055, 1964 (3d Cir. 1980); Restatement of Torts, Section 742, Comment a (1938). We therefore conclude, as a matter of law, that Artus’ plain, unmarked colors are nonfunctional and entitled to protection if secondary meaning has attached. (B) The issue of secondary meaning is generally a factual one and often a matter of inference. John Wright, Inc. v. Casper Corp., supra, 419 F.Supp. 292, 317-318. Proof of secondary meaning is difficult since there are no precise guidelines and no single determining factor. Each case must be decided on its own facts with considerations given to such elements as: (a) length and exclusivity of use, (b) sales level, (c) extent of advertising and promotion, and (d) similarity of the markets or products in the likelihood of causing confusion. American Footwear Corp. v. Genera] Footwear Company, 609 F.2d 655, 665 (2d Cir. 1979). No particular length of time is required to establish secondary meaning" }, { "docid": "547282", "title": "", "text": "OPINION ZIEGLER, District Judge. I. History of Case On October 15, 1940, plaintiff, The Artus Corporation, (“Artus”), obtained an exclusive license under a United States patent for a novel shim for spacing milling machinery parts. Included in the patent was the claim that the shim material would be colored, but no specific colors were claimed. Within one month of securing the patent, Artus adopted the following colors to indicate various thicknesses of the shims: silver, amber, purple, red, green, tan, blue, transparent matte, brown, black, pink, yellow, white and coral. Artus has continuously and consistently utilized these plain colors in the advertising, manufacturing and selling of its shims. In October, 1974, defendant, Nordic Company, (“Nordic”), began to manufacture and sell plain, unmarked color-coded shims. These shims differed from those of Artus in color selection. Nordic’s marketing attempt was initially unsuccessful and it abandoned its choice of colors and adopted Artus’ plain, unmarked color-coded system with identical thicknesses. Repeated requests by Artus to Nordic to discontinue use of the unmarked color scheme have been ignored. Artus instituted this action on December 23, 1977, alleging infringement of proprietary rights due to unfair competition in the manufacture and sale of plain, unmarked color-coded shims, gasket shim stock and spacers. On January 24, 1978, Nordic answered and denied infringement and simultaneously set forth affirmative defenses and a counterclaim. In defense, Nordic contends that plaintiff’s plain color-coded system for shims is available for privileged imitation and thus not entitled to protection, and also that the action is barred by unclean hands and laches. In its counterclaim, defendant alleges that Artus has unlawfully attempted to monopolize the trade in the industry. Following discovery, Artus moved for summary judgment. The court denied the motion on January 31, 1980, due to the existence of a genuine issue of a material fact. Thereafter, Artus amended its complaint and additionally charged Nordic with acts of. unfair competition and deceptive trade practice under Section 43(a) of the Lanham Act. 15 U.S.C. § 1125(a). Specifically, Artus alleges that Nordic has been and continues to engage in unfair trade practices and competition by" }, { "docid": "547285", "title": "", "text": "color-coded shims that are virtually identical in colors and sizes to those manufactured and sold by Artus. Before reaching plaintiff’s claims of unfair competition and false advertising under the Lanham Act and state law, we will briefly review the well-established federal jurisprudence pertaining to the right to copy goods or products of another. Federal law permits Nordic to manufacture and sell plain, unmarked color-coded shims which are identical in every detail to those manufactured and sold by Artus. Artus’ plain, unmarked color-coded system is neither patented nor copyrighted and thus entirely in the public domain, and Nordic has the right, if it chooses, to copy. Sears, Roebuck & Co. v. Stiffel, 376 U.S. 225, 231-32, 84 S.Ct. 784, 788-89, 11 L.Ed.2d 661 (1964). This principle obtains even if the system became associated with Artus in the public’s mind prior to Nordic’s entry in the field in 1974. As the Supreme Court. stated in Compco Corp. v. Day-Brite Lighting, Inc.: That an article copied from an unpatented article could be made in some other way, that the design is non-functional and not essential to the use of either article, that the configuration of the article copied may have a secondary meaning which identifies the maker to the trade, or that there may be confusion among purchasers as to which article is which or as to who is the maker, may be relevant evidence in applying a State’s law requiring such precautions as labeling; however, regardless of the copier’s motives, neither these facts nor any others can furnish a basis for imposing liability for or prohibiting the actual acts of copying or selling. 376 U.S. 234, 238, 84 S.Ct. 779, 782, 11 L.Ed.2d 669 (1964). While federal (patent) law prevents a state from prohibiting the copying and selling of unpatented articles, it does not preclude a state, either statutorily or judicially, from requiring that those who make and sell copies must take precautions to adequately identify their products. SK&F Co. v. Premo Pharmaceutical Lab., 625 F.2d 1055, 1964 (3d Cir. 1980); Ives Laboratories, Inc. v. Darby Drug Co., Inc., 601 F.2d 631," }, { "docid": "547289", "title": "", "text": "acquired a secondary meaning in the minds of customers. John Wright, Inc. v. Casper Corp., 419 F.Supp. 292, 317 (E.D.Pa.1976), modified on other grounds, 587 F.2d 602 (3d Cir. 1978); McCarthy, supra, Section 15:4, at 524. Nordic contends, and Artus concedes, that Artus’ original decision to color its various shims was functional. The coloring was, and still is employed to denote thickness. It decreases the probability of “thickness” error and saves the user set-up time. Since coloring affects handling, it is in this context functional. Section 742 of the Restatement of Torts defines functionality as follows: A feature of the goods is functional, under the rule stated in 741, if it affects their purpose, action or performance, or the facility or economy of processing, handling or using them; it is non-functional if it does not have any of such effects. If the right to color was at issue, Artus concedes that Nordic would be entitled to employ colors to denote shim thickness. That concession is mandated by Ives Laboratories, Inc. v. Darby Drug Co., Inc., supra, 601 F.2d at 643. “Where the features are functional there is normally no right to protection or relief .... If the particular feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright .... ” However, Artus objects to the use of a particular combination of unmarked colors, without adequate distinguishing characteristics or labeling, and not to the use of colors, per se. Artus’ use of plain, unmarked colors serves to distinguish its product from that of other manufacturers and sellers, just as the use of Artus’ colors with the application of dots and stars distinguish the products of other manufacturers from Artus. Artus contends that the particular selection and arbitrary application of 14 varying unmarked colors is nonfunctional and, over the course of 25 years, it has developed a secondary meaning in the minds of its customers. We agree. Color alone or indiscriminately applied to the overall configuration of a product may not function as a" }, { "docid": "3398449", "title": "", "text": "ther, the Supreme Court has stated that the fact that a product’s configuration has a secondary meaning does not “furnish a basis for ... prohibiting the actual acts of copying and selling.” Compco, 376 U.S. at 238; 84 S.Ct. at 782. This conclusion indicates that “secondary meaning” would have been an invalid basis upon which to proscribe Lucas’ use of brown, even if we accept North Shore’s contention that it raised this issue in 1979. The district court’s interpretation of the consent judgment correctly avoids violation of this principle. The Sears-Compco doctrine also permits the copying of an unpatented article even if the design is “unfunctional”, i.e., not essential to the manufacture or use of the product. It follows that one may produce brown tire repairs even though a repair of the same type and quality can be produced in a color other than brown. The record indicates, however, that the color of the Lucas tire repair is in fact functional or generic and not merely a matter of design. The repairs are brown due to a red lead component which gives the repairs their essential self-vulcanizing quality. Acceptance of appellant’s position in this case would mean that Lucas would be required to incur the additional expense of dyeing his product another color, even though every other tire repair manufacturer is freely permitted to manufacture brown tire repairs. More important, the courts have uniformly rejected sanctioning exclusive rights to product color. William R. Warner & Co. v. Eli Lilly & Co., 265 U.S. 526, 531, 44 S.Ct. 615, 617, 68 L.Ed. 1161 (1924); Association of Co-operative Members, Inc. v. Farmland Industries, Inc., supra, 684 F.2d at 1140; Quabaug Rubber Co. v. Fabiano Shoe Co., Inc., 567 F.2d 154, 161 (1st Cir.1977); Norwich Pharmacal Co. v. Sterling Drug, Inc., 271 F.2d 569, 572 (2d Cir.1959); National Football League Properties, Inc. v. Wichita Falls Sportswear, Inc., 532 F.Supp. 651, 656 (W.D.Wash.1982); Artus Corp. v. Nordic Co., Inc., 512 F.Supp. 1184, 1188-9 (W.D.Pa.1981); SK & F Co. v. Premo Pharmaceutical Laboratories, Inc., 481 F.Supp. 1184, 1187 (D.N.J.1979); Dallas Cowboy Cheerleaders, Inc. v. Pussycat" } ]

[ { "docid": "22877659", "title": "", "text": "the record. See Chambliss, 269 F.3d at 522 (AU need not give great weight to a VA rating if he \"adequately explain[s] the valid reasons for not doing so\"). III In this case, the VA determined that McCartey was 80% disabled due to his depression and lower back injury. The AU failed to consider the VA finding and did not mention it in his opinion. We hold that the AU erred in disregarding McCartey's VA disability rating, and accordingly, the Commissioner's decision must be reversed and remanded. We have discretion to remand a case either for additional evidence and findings or for an award of benefits. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir.1996). We may direct an award of benefits if the record has been fully developed and further administrative proceedings would serve no useful purpose. Id. Such a circumstance arises when: (1) the AUJ has failed to provide legally sufficient reasons for rejecting the claimant's evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled if he considered the claimant’s evidence. Id., citing Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir.1989) (crediting treating physician’s testimony and awarding benefits); Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir.1989) (crediting subjective symptom testimony and awarding benefits); see also Lester v. Chater, 81 F.3d 821, 834 (9th Cir.1995) (same); Stewart v. Heckler, 730 F.2d 1065, 1068 (6th Cir.1984) (crediting VA finding of disability and awarding benefits). In this case, the VA’s disability finding was supported by several hundred pages of medical records. The record is fully developed and, giving great weight to the VA disability rating, a finding of disability is clearly required. See Smolen, 80 F.3d at 1292. Therefore, we hold that McCartey was disabled throughout the relevant period, and we reverse and remand to the district court with instructions to remand to the ALJ for payment of benefits. REVERSED and REMANDED. . Because we reverse on this ground, we" } ]

[ { "docid": "14799285", "title": "", "text": "from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.1998); Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir.2001). “Where the evidence can reasonably support either affirming or reversing the decision, [this Court] may not substitute [its] judgment for that of the Commissioner.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.2007), 552 U.S. 1141, 128 S.Ct. 1068, 169 L.Ed.2d 808 (2008); Vasquez, 572 F.3d at 591. The claimant is “disabled” for the purpose of receiving benefits under the Social Security Act (“Act”) if she is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). “The claimant bears the burden of establishing a prima facie case of disability.” Roberts v. Shalala, 66 F.Sd 179, 182 (9th Cir.1995), cert. denied. 517 U.S. 1122, 116 S.Ct. 1356, 134 L.Ed.2d 524 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir.1996); see also Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir.2009) (“To establish eligibility for Social Security benefits, a claimant has the burden to prove he is disabled.”). The Commissioner has promulgated regulations establishing a five-step sequential evaluation process for the ALJ to follow in a disability case. 20 C.F.R. §§ 404.1520, 416.920. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment or combination of impairments significantly limiting her from performing basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). If so, in the Third Step, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments (“Listing”), 20 C.F.R. § 404, Subpart P, App. 1. 20 C.F.R. §§ 404.1520(d), 416.920(d). If not, in the Fourth Step, the ALJ must determine whether the claimant has sufficient residual functional capacity despite the impairment" }, { "docid": "22173492", "title": "", "text": "render that court’s decision logically categorical. It only makes it more likely that future panels will exercise their discretion to apply the credit-as-true rule when remand is necessary for other reasons. (This is one such case.) That Social Security claimants are commonly elderly and their benefits typically delayed is therefore beside the point. Nor do Lester, Harman, and Benecke provide a basis for concluding otherwise. The dissent argues that Lester stands for the broad proposition that “[w]here the Commissioner fails to provide adequate reasons for rejecting[testimony], we credit that [testimony] ‘as a matter of law,’ ” 81 F.3d at 834, regardless of the need for remand on other issues. Dissent at 603. Setting aside whether such an expansive interpretation of that statement has any merit, it simply was not relevant to the outcome of that case. There, after applying the credit-as-true rule, the Lester panel “remand[ed] for payment of benefits” because no other proceedings were necessary. Id. at 834. Thus, even assuming arguendo that Lester concluded Hammock extended Varney II across the board, that conclusion had no bearing on the result in that case and is therefore nonbinding dicta. See Coalition of Clergy, Lawyers, and Professors v. Bush, 310 F.3d 1153, 1166 (9th Cir.2002) (analysis that is “in no way relevant to any holding” is “dicta [which] does not bind [future] panel[s] of this court”). Harman provides even less support for the conclusion that Varney II has been extended to all cases like this one. There, we expressly addressed the circumstances under which “evidence should be credited and an immediate award of benefits directed.” Harman, 211 F.3d at 1178 (emphasis added). We concluded that testimony should be credited as true only when (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir.1996)). In conformity" }, { "docid": "21311130", "title": "", "text": "prong of Listing 12.05C. B. Remand Within the Court’s discretion under 42 U.S.C.' § 405(g) is the “decision whether to remand for further proceedings or for an award of benefits.” Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir.2001) (citation omitted). Although'a court should generally remand to the agency for additional investigation or explanation, a court has discretion .to remand for immediate payment of benefits. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir.2014). The issue turns on the utility of further proceedings. A remand for an award of benefits is appropriate when no useful purpose would be served by further administrative' proceedings or when the record has been fully developed and the evidence is insufficient to support the Commissioner’s decision. Id. at 1100. A court may not award benefits punitively and must conduct a “credit-as-true” analysis on evidence'that has been improperly rejected by the ALJ to deter-miné if a claimant is disabled under the Act. Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir.2011). In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this Court. Garrison v. Colvin, 759 F.3d 995, 999 (9th Cir.2014). It was recently described by the United States Court of Appeals for the Ninth Circüit as follows: [The Ninth\" Circuit has] devised a three-part credit-as-true standard, each part of which must be satisfied in order for a court to remand to an ALJ with instructions to calculate and award benefits: (1); the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. Id, at 1020. Ordinarily, if all three of these elements are satisfied, a district court‘must remand for a calculation of benefits. Id. If, however, “an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled,” the district court" }, { "docid": "22364957", "title": "", "text": "1077 (9th Cir.2002); Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 926 (9th Cir.2002); Smolen, 80 F.3d at 1292. This means we consider whether the “claim of disability has been developed by an evidentiary hearing and numerous medical reports.” Vertigan v. Halter, 260 F.3d 1044, 1053 (9th Cir.2001). We may find the rule’s second element unmet only when the record is not sufficiently developed, for example when “critical portions of [a treating physician’s] testimony ... were not before the ALJ at all but were presented only to the Appeals Council,” Harman, 211 F.3d at 1180; when “additional assumptions should have been incorporated into the ALJ’s hypothetical,” Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir.2012); or when “no vocational expert has been called upon to consider all of the testimony that is relevant'to the case,” Bunnell, 336 F.3d at 1116. Here, the second element is clearly met. The record before the ALJ included all the critical evidence, and the vocational expert was asked to consider all the testimony relevant to the case. The inquiry under the second element of the credit-as-true rule should end there. The majority, instead, holds that the second element of the credit-as-true rule is unmet where the record does not unquestionably establish that a claimant’s testimony is true. See Maj. Op. at 1105. This is improper. Fundamentally, the credit-as-true rule asks whether “taking the claimant’s testimony as true, the ALJ would clearly be required to award benefits.” Lingenfelter, 504 F.3d at 1041 (emphasis added). It does not ask, as the majority does, whether the claimant’s testimony is clearly established as true by the record. The majority points to Nguyen v. Chater, 100 F.3d 1462 (9th Cir.1996), as an example of a ease where we remanded to the ALJ for further proceedings after finding legal error. Maj. Op. at 1104. The claimant’s case in Nguyen, however, was based primarily on the reports of doctors; the claimant’s testimony by itself was insufficient to establish that he was disabled. See Nguyen, 100 F.3d at 1464-67. The court thus made no mention of the credit-as-true rule because it" }, { "docid": "22616626", "title": "", "text": "situation as to what one person experiences versus another as far as fatigue is concerned.” While Lesh testified that the jobs she listed were sedentary in nature and did not require physical exertion such as lifting, as previously noted, Smolen became fatigued even when doing sedentary activity such as typing or sewing. See supra p. 1291. Finally, although Smolen managed to graduate from high school and attend college, her fatigue regularly caused her to fall asleep in class or to miss class completely. Such effects would have prevented Smolen from maintaining even a sedentary full-time job. Considering the record as a whole, including the evidence the ALJ erroneously discredited, we conclude that the ALJ’s finding that Smolen could have performed sedentary work is not supported by substantial evidence. Instead, the overwhelming evidence to the contrary required the ALJ to find Smolen disabled. III. Remand for Award of Benefits We have discretion to remand a case either for additional evidence and findings or to award benefits. Swenson, 876 F.2d at 689. We may direct an award of benefits where the record has been fully developed and where further administrative proceedings would serve no useful purpose. Id. In the past, we have credited evidence and remanded for an award of benefits where (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. See Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir.1989) (crediting treating physician’s uncontroverted testimony and awarding benefits); Swenson, 876 F.2d at 689 (crediting subjective symptom testimony and awarding benefits); Varney v. Secretary of Health & Human Servs., 859 F.2d 1396, 1401 (9th Cir.1988) (same). In this case, the ALJ’s reasons for discrediting Smolen’s subjective symptom testimony, the physicians’ opinions, and the lay testimony were legally insufficient. There are no outstanding issues to preclude us from making a disability determination on the merits. The record" }, { "docid": "22627730", "title": "", "text": "Commissioner fails to provide adequate reasons for rejecting the opinion of a treating or examining physician, we credit that opinion ‘as a matter of law.’ ” Lester, 81 F.3d. at 834, quoting Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir.1989). We built upon this rule in Smolen by positing the following test for determining when evidence should be credited and an immediate award of benefits directed: (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Smolen, 80 F.3d at 1292. The Commissioner attacks Appellant’s reliance on Lester by arguing that the record in that case contained no evidence capable of supporting the rejection of the medical opinions, while here, according to the Commissioner, there is such evidence. However, even assuming arguendo that there is material in the record upon which the ALJ legitimately could have rejected Dr. Fox’s testimony, the Commissioner’s attempt to distinguish Lester is not well founded. In Varney v. Secretary of Health and Human Services (Varney II), 859 F.2d 1396 (9th Cir.1988), this court addressed the propriety of adopting the Eleventh Circuit’s practice of accepting a claimant’s pain testimony as true when it is inadequately rejected by the ALJ. In language which is equally applicable here, we stated: Requiring the ALJs to specify any factors discrediting a claimant at the first opportunity helps to improve the performance of the ALJs by discouraging them from reaching] a conclusion first, and then attempt[ing] to justify it by ignoring competent evidence.... [¶ And] the rule [of crediting such testimony] ensures that deserving claimants will receive benefits as soon as possible.... .. Certainly there may exist valid grounds on which to discredit a claimant’s pain testimony.... But if grounds for such a finding exist, it is both reasonable and desirable to require the ALJ to articulate them in the original decision. Id. at 1398-99." }, { "docid": "22173493", "title": "", "text": "had no bearing on the result in that case and is therefore nonbinding dicta. See Coalition of Clergy, Lawyers, and Professors v. Bush, 310 F.3d 1153, 1166 (9th Cir.2002) (analysis that is “in no way relevant to any holding” is “dicta [which] does not bind [future] panel[s] of this court”). Harman provides even less support for the conclusion that Varney II has been extended to all cases like this one. There, we expressly addressed the circumstances under which “evidence should be credited and an immediate award of benefits directed.” Harman, 211 F.3d at 1178 (emphasis added). We concluded that testimony should be credited as true only when (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir.1996)). In conformity with Varney II, we determined that if these three elements were met, “then remand for determination and payment of benefits [would be] warranted regardless of whether the ALJ might have articulated a justification for rejecting [the testimony].” Id. But, we concluded, application of the rule was not appropriate in that particular case because the vocational expert had not addressed the limitations posed by the conditions sought to be established by application of the rule. Id. at 1180. Accordingly, “[t]he appropriate remedy ... [was] to remand this case to the ALJ.” Id. Thus if Harman demonstrates anything, it is that Hammock established judicial discretion to apply (or not apply) the credit-as-true rule in cases where remand is necessary for other reasons. Certainly it cannot be read to mean what the dissent claims — that we must apply the credit-as-true rule in cases where remand is necessary for other reasons. Benecke is also readily distinguishable. The dissent is correct to note that the Benecke panel “applied] the crediting-as-true rule and only then discussfed] whether there were ‘outstanding" }, { "docid": "22616627", "title": "", "text": "of benefits where the record has been fully developed and where further administrative proceedings would serve no useful purpose. Id. In the past, we have credited evidence and remanded for an award of benefits where (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. See Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir.1989) (crediting treating physician’s uncontroverted testimony and awarding benefits); Swenson, 876 F.2d at 689 (crediting subjective symptom testimony and awarding benefits); Varney v. Secretary of Health & Human Servs., 859 F.2d 1396, 1401 (9th Cir.1988) (same). In this case, the ALJ’s reasons for discrediting Smolen’s subjective symptom testimony, the physicians’ opinions, and the lay testimony were legally insufficient. There are no outstanding issues to preclude us from making a disability determination on the merits. The record is fully developed and, considering the evidence that the ALJ improperly discredited, a finding of disability is clearly required. Smolen has already waited over seven years for her disability determination, and additional proceedings would only delay her receipt of benefits. Therefore, we find that Smolen was disabled throughout the relevant period, and reverse and remand for determination of benefits. REVERSE and REMAND. Costs to Appellant. . The Commissioner's revised regulations, which became effective November 14, 1991, adopt the same basic scheme for evaluating subjective symptom testimony as this two-step analysis. See 20 C.F.R. § 404.1529. Under the new regulations, the Commissioner first determines whether there is a medically determinable impairment that could reasonably be expected to cause the claimant’s symptoms (the Cotton test). See 20 C.F.R. § 404.1529(a) and (b). The Commissioner then evaluates the intensity and persistence of the claimant’s symptoms, considering evidence beyond the claimant's own testimony, including SSR 88-13 factors discussed infra pp. 1284. See 20 C.F.R. § 404.1529(c)(incorporating SSR 88-13); 56 Fed.Reg. 57928, 11/14/91 (SSR 88-13 incorporated into federal regulations). At" }, { "docid": "22397388", "title": "", "text": "Bowen, we held that the credit-as-true rule applies to medical opinion evidence, not only claimant testimony. See 879 F.2d 498 (9th Cir.1989). Since Varney II, we have applied the credit-as-true rule in nearly two dozen published opinions. In those cases, we have developed a workable and stable framework for applying the credit-as-true rule. Specifically, we have devised a three-part credit-as-true standard, each part of which must be satisfied in order for a court to remand to an ALJ with instructions to calculate and award benefits: (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. See Ryan, 528 F.3d at 1202; Lingenfelter, 504 F.3d at 1041; Orn, 495 F.3d at 640; Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir.2004); Smolen, 80 F.3d at 1292. We have, in a number of cases, stated or implied that it would be an abuse of discretion for a district court not to remand for an award of benefits when all of these conditions are met. See, e.g., Lingenfelter, 504 F.3d at 1041; Orn, 495 F.3d at 640; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir.2002); Harman, 211 F.3d at 1178; Smolen, 80 F.3d at 1292; Lester, 81 F.3d at 834; Ramirez v. Shalala, 8 F.3d 1449, 1455 (9th Cir.1993); Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir.1989). In the 2003 case of Connett v. Barnhart, 340 F.3d 871 (9th Cir.2003), however, we cautioned that the credit-as-true rule may not be dispositive of the remand question in all cases. Rather, recognizing that this rule, like most, admits of exceptions meant to preserve the rule’s purpose, we noted that the credit-as-true doctrine envisions “some flexibility.” Id. at 876. Connett then concluded that under the circumstances there present a remand for an award of benefits was not mandatory and remanded for further proceedings. Connett, however, did" }, { "docid": "22794273", "title": "", "text": "subsequently concluded that Benecke retains residual functional capacity to perform light or sedentary work, including her past work as a telemarketer, and thus, was not entitled to disability benefits. See 20 C.F.R. § 404.1520 (describing the five-step sequential evaluation process used to determine whether a claimant is disabled). In making this determination, the ALJ discredited Benecke’s testimony about the extent of her impairments, as well as Be-necke’s treating physicians’ opinions. The ALJ opined that it “appears ... the claimant has ‘bought into’ being an invalid, and, therefore, considers herself disabled as a result.” E. Analysis Remand for further administrative proceedings is appropriate if enhancement of the record would be useful. See Harman, 211 F.3d at 1178. Conversely, where the record has been developed fully and further administrative proceedings would serve no useful purpose, the district court should remand for an immediate award of benefits. See Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir.1996); Varney v. Secretary of Health and Human Services, 859 F.2d 1396, 1399 (9th Cir.1988). More specifically, the district court should credit evidence that was rejected during the administrative process and remand for an immediate award of benefits if (1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Harman, 211 F.3d at 1178; see also McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir.2002); Smolen, 80 F.3d at 1292. Where the Harman test is met, we will not remand solely to allow the ALJ to make specific findings regarding excessive pain testimony. Rather, we take the relevant testimony to be established as true and remand for an award of benefits. Varney, 859 F.2d at 1401; see also Reddick v. Chater, 157 F.3d 715, 728 (9th Cir.1998) (quoting Varney); Lester, 81 F.3d at 834 (same); Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir.1989) (same); but cf. Connett v. Barnhart, 340 F.3d 871," }, { "docid": "22397387", "title": "", "text": "will receive benefits as soon as possible. As already noted, applicants for disability benefits often suffer from painful and debilitating conditions, as well as severe economic hardship. Delaying the payment of benefits by requiring multiple administrative proceedings that are du-plicative and unnecessary only serves to cause the applicant further damage— financial, medical, and emotional. Such damage can never be remedied. Without endangering the integrity of the disability determination process, a principal goal of that process must be the speedy resolution of disability applicants’ claims. At the same time, the rule does not unduly burden the ALJs, nor should it result in the wrongful award of benefits ... [I]f grounds for [concluding that a claimant is not disabled] exist, it is both reasonable and desirable to require the ALJ to articulate them in the original decision. Id. at 1398-99 (quotation marks, citations, and alterations omitted). In light of these concerns, we noted, “[w]here remand would unnecessarily delay the receipt of benefits, judgment for the claimant is appropriate.” Id. at 1399. One year later, in Hammock v. Bowen, we held that the credit-as-true rule applies to medical opinion evidence, not only claimant testimony. See 879 F.2d 498 (9th Cir.1989). Since Varney II, we have applied the credit-as-true rule in nearly two dozen published opinions. In those cases, we have developed a workable and stable framework for applying the credit-as-true rule. Specifically, we have devised a three-part credit-as-true standard, each part of which must be satisfied in order for a court to remand to an ALJ with instructions to calculate and award benefits: (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. See Ryan, 528 F.3d at 1202; Lingenfelter, 504 F.3d at 1041; Orn, 495 F.3d at 640; Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir.2004); Smolen, 80 F.3d at 1292. We have," }, { "docid": "23035579", "title": "", "text": "983 [157 L.Ed.2d 967 (2004) ], we must reverse the district court’s decision to the extent it affirmed the ALJ’s credibility determination.” 775 F.3d at 1099. IV. Brown-Hunter argues that in light of the ALJ’s error, we must credit her testimony as true and remand to the district court with instructions to remand to the agency for an immediate award of benefits. A remand for an immediate award of benefits is appropriate, however, only in “rare circumstances.” Id. Before ordering that extreme remedy, we must first satisfy ourselves that three requirements have been met. First, we must conclude that “the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir.2014). Second, we must conclude that “the record has been fully developed and further administrative proceedings would serve no useful purpose.” Id. This requirement will not be satisfied if “the record raises crucial questions as to the extent of [a claimant’s] impairment given inconsistencies between his testimony and the medical evidence in the record,” because “[t]hese are exactly the sort of issues that should be remanded to the agency for further proceedings.” Treichler, 775 F.3d at 1105. Importantly, we are “to assess whether there are outstanding issues requiring resolution before considering whether to hold that the claimant’s testimony is credible as a matter of law.” Id. This is because “a reviewing court is not required to credit claimants’ allegations regarding the extent of their impairments as true merely because the ALJ made a legal error in discrediting their testimony.” Id. at 1106. The touchstone for an award of benefits is the existence of a disability, not the agency’s legal error. To condition an award of benefits only on the existence of legal error by the ALJ would in many cases make “ ‘disability benefits ... available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).’ ” Id., quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989). Third, we must conclude that “if the improperly .discredited evidence were credited as true, the" }, { "docid": "22738752", "title": "", "text": "a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.” Smolen, 80 F.3d at 1292. The Smolen test does not apply here because there are “out-standing issues that must be resolved before a determination of disability can be made.” As stated above, Dr. Caillouette’s statement regarding Lin-genfelter’s disability is ambiguous, and it is exclusively within the province of the ALJ to interpret ambiguous evidence. A remand to the agency is required so that the ALJ may either interpret Dr. Caillouette’s statement or hold additional hearings to determine the proper interpretation. We have generally applied the Smolen test only in eases where the evidence in the record strongly supports a finding of disability. See, e.g., Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir.2004) (finding that, despite the finding of no disability by the ALJ, the record “clearly establishes that [claimant] cannot perform a sedentary job”); McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir.2002) (stating that the VA rating of disability, which the ALJ did not consider, was supported by several hundred pages of medical records and must be given “great weight”; hence “a finding of disability is clearly required”); Smolen, 80 F.3d at 1291-92 (noting that the claimant offered “extensive testimony” that was supported by two physicians’ opinions and the rest of the record, and that “the overwhelming evidence ... required the ALJ to find [claimant] disabled”); Swenson v. Sullivan, 876 F.2d 683, 688 (9th Cir.1989) (finding that the claimant’s testimony “was supported by substantial medical evidence,” and that the only expert testified that the claimant would not be able to engage in any work). In this case, to the contrary, the weight of the medical evidence in the record contradicts both the degree of Lingenfelter’s claimed disability and the medical opinions of Lingenfelter’s treating physicians. The Smolen test was designed to expedite the resolution of disability applicants’ claims, but should not be employed in cases where it would be likely to result in the wrongful award of benefits." }, { "docid": "22738751", "title": "", "text": "the ALJ may not reject this opinion without providing ‘specific and legitimate reasons’ ” for doing so that are “supported by substantial evidence in the record.” Orn, at 632 (citation omitted); see also Thomas, 278 F.3d at 957; Tonapetyan, 242 F.3d at 1148. The decision of an ALJ fails this test when the ALJ completely ignores or neglects to mention a treating physician’s medical opinion that is relevant to the medical evidence being discussed. See Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir.1986). Such cases should be remanded to the agency for proper consideration of the evidence. See id. at 1408-09. V The opinion of the Court concludes that Lingenfelter is entitled to an award of benefits under the Smolen test. The test states that the district court should credit evidence or testimony that was rejected during the administrative process and remand for an immediate award of benefits where: “(1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.” Smolen, 80 F.3d at 1292. The Smolen test does not apply here because there are “out-standing issues that must be resolved before a determination of disability can be made.” As stated above, Dr. Caillouette’s statement regarding Lin-genfelter’s disability is ambiguous, and it is exclusively within the province of the ALJ to interpret ambiguous evidence. A remand to the agency is required so that the ALJ may either interpret Dr. Caillouette’s statement or hold additional hearings to determine the proper interpretation. We have generally applied the Smolen test only in eases where the evidence in the record strongly supports a finding of disability. See, e.g., Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir.2004) (finding that, despite the finding of no disability by the ALJ, the record “clearly establishes that [claimant] cannot perform a sedentary job”); McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir.2002) (stating" }, { "docid": "985177", "title": "", "text": "because the relief requested, a direct award of benefits, was not granted. See Forney v. Apfel, 524 U.S. 266, 271, 118 S.Ct. 1984, 141 L.Ed.2d 269 (1998). We have jurisdiction under 28 U.S.C. § 1291, and we review the decision to remand for further proceedings for abuse of discretion. Treichler, 775 F.3d at 1100. All other issues are reviewed de novo. Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). III. When the ALJ denies benefits and the court finds error, the court ordinarily must remand to the agency for further proceedings before directing an award of benefits. Treichler, 775 F.3d at 1099. Where an ALJ improperly rejects a claimant’s pain testimony as incredible without providing legally sufficient reasons, the reviewing court may grant a direct award of benefits when certain conditions are met. Varney, 859 F.2d at 1400-01. The three-part analysis for such conditions is known as the “credit-as-true” rule. Garrison, 759 F.3d at 1019. First, we ask whether the “ALJ failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion.” Id. at 1020. Next, we determine “‘whether there are ‘outstanding issues that must be resolved before a disability determination can be made,’ ... and whether further administrative proceedings would be useful.” Treichler, 775 F.3d at 1101, quoting Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004). When these first two conditions are satisfied, we then credit the discredited testimony as true for the purpose of determining whether, on the record taken as a whole, there is no doubt as to disability. Id. The application of the Varney rule for a direct award of benefits was intended as a rare and prophylactic exception to the ordinary remand rule when there is no question that a finding of disability would be required if claimant’s testimony were accepted as true. Id. As emphasized in Treichler, the three-step Varney rule may result in a direct award of benefits only if the first two conditions are satisfied and further administrative proceedings would not be useful. Even if we reach the third step and credit the claimant’s" }, { "docid": "22794274", "title": "", "text": "evidence that was rejected during the administrative process and remand for an immediate award of benefits if (1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Harman, 211 F.3d at 1178; see also McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir.2002); Smolen, 80 F.3d at 1292. Where the Harman test is met, we will not remand solely to allow the ALJ to make specific findings regarding excessive pain testimony. Rather, we take the relevant testimony to be established as true and remand for an award of benefits. Varney, 859 F.2d at 1401; see also Reddick v. Chater, 157 F.3d 715, 728 (9th Cir.1998) (quoting Varney); Lester, 81 F.3d at 834 (same); Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir.1989) (same); but cf. Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir.2003) (holding that the court has flexibility in crediting petitioner’s testimony if substantial questions remain as to her credibility and other issues must be resolved before a determination of disability can be made). The district court held that the ALJ erred in discounting Benecke’s credibility and the evaluations of her treating physicians. We agree. The record provides little support for the ALJ’s credibility finding. In discrediting Benecke’s testimony about the severity of her symptoms, the ALJ relied largely on Benecke’s ability to carry out certain routine tasks. As described above, Benecke’s daily activities are quite limited and carried out with difficulty. “This court has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities ... does not in any way detract from her credibility as to her overall disability. One does not need to be ‘utterly incapacitated’ in order to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.2001) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989)). Likewise, the ALJ erred in discounting the" }, { "docid": "22364950", "title": "", "text": "<• TASHIMA, Circuit Judge, concurring in part and dissenting in part: I agree with the majority that the ALJ erred in discrediting Treichler’s medically determinable pain and symptom testimony based on a boilerplate credibility determination. I part company, however, with the majority’s remand for further proceedings. I would, instead, remand for the award of benefits. I, therefore, dissent from Part IV of the majority opinion. I. Under the credit-as-true rule, a reviewing court may “credit evidence that was rejected during the administrative process and remand for an immediate award of benefits if: (1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.2004). Under our precedent, we must remand for an award of benefits if these three factors are met, unless the record discloses that there is “serious doubt” that the claimant is actually disabled. Garrison v. Colvin, 759 F.3d 995, 1023 (9th Cir.2014). Here, each of these factors is satisfied and there is no serious doubt that Treichler is actually disabled. First, the ALJ failed to provide “legally sufficient reasons” for rejecting Treichler’s pain and symptom testimony. Id. at 1022. As the majority holds, the ALJ committed legal error in rejecting Treichler’s testimony based on boilerplate. Maj. Op. at 1102-03. Second, there are “no outstanding issues that must be resolved before a determination of disability can be made.” Garrison, 759 F.3d at 1019 (quoting Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396, 1401 (9th Cir.1988) (internal quotation marks omitted)). We have remanded for additional proceedings when “critical portions of [a treating physician’s] testimony ... were not before the ALJ at all but were presented only to the Appeals Council,” Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir.2000), or when “no vocational expert has been called upon to consider all of the testimony that" }, { "docid": "21311129", "title": "", "text": "claimant’s ability to perform basic work activities is more than slight or minimal.” Fanning v. Bowen, 827 F.2d 631, 633 (9th Cir.1987). The ALJ’s finding at step two that Plaintiff has several severe impairments including a cochlear implant, anxiety disorder, affective disorder, and a history of reticular dysgenesis satisfies the work-related limitation- requirement of Listing 12.05C. See, e.g., Campbell, 2011 WL 444783, at *18 (“Thus, a finding of severe impairment at step two is a per se finding of ‘impairment imposing additional and significant work-related limitation of function’ as employed in the second prong of Listing 12.05C.” (collecting cases)); see also Listing 12.00A (“For paragraph C, we will assess the degree of functional limitation the additional impairment(s) imposes to determine if it significantly limits your physical or mental ability to do basic work activities, i.e., is a ‘severe’ impairment(s), as defined in §§ 404.1520(c) and 416.920(c).”). Thus, although the ALJ did not discuss whether Plaintiffs impairments caused an additional and significant work-related limitation, the ALJ’s findings at step two establish that Plaintiff satisfies the final prong of Listing 12.05C. B. Remand Within the Court’s discretion under 42 U.S.C.' § 405(g) is the “decision whether to remand for further proceedings or for an award of benefits.” Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir.2001) (citation omitted). Although'a court should generally remand to the agency for additional investigation or explanation, a court has discretion .to remand for immediate payment of benefits. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir.2014). The issue turns on the utility of further proceedings. A remand for an award of benefits is appropriate when no useful purpose would be served by further administrative' proceedings or when the record has been fully developed and the evidence is insufficient to support the Commissioner’s decision. Id. at 1100. A court may not award benefits punitively and must conduct a “credit-as-true” analysis on evidence'that has been improperly rejected by the ALJ to deter-miné if a claimant is disabled under the Act. Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir.2011). In" }, { "docid": "22627729", "title": "", "text": "exercise this additional power but simply gave district courts the authority to do so in an appropriate case, it reasonably may be inferred that the district court’s exercise of such authority was intended to be discretionary and should be reviewed for abuse of discretion. Ill A. Determining the Correct Test Appellant contends that as a result of the ALJ’s improper rejection of Dr. Fox’s opinion, the district court in this case was obligated simply to credit the opinion as true in order to determine whether there was any need of further proceedings. The Commissioner disputes whether our precedents require us to construe the record so generously in Appellant’s favor. According to the Commissioner, the necessity for further proceedings properly is evaluated under the general rule that remand is appropriate if enhancement of the record would be useful. Appellant supports his argument that Dr. Fox’s testimony should be credited by citation to Lester v. Chater, 81 F.3d 821 (9th Cir.1995) and Smolen v. Chater, 80 F.3d 1273 (9th Cir.1996). In Lester, we wrote that “[wjhere the Commissioner fails to provide adequate reasons for rejecting the opinion of a treating or examining physician, we credit that opinion ‘as a matter of law.’ ” Lester, 81 F.3d. at 834, quoting Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir.1989). We built upon this rule in Smolen by positing the following test for determining when evidence should be credited and an immediate award of benefits directed: (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Smolen, 80 F.3d at 1292. The Commissioner attacks Appellant’s reliance on Lester by arguing that the record in that case contained no evidence capable of supporting the rejection of the medical opinions, while here, according to the Commissioner, there is such evidence. However, even assuming arguendo that there is material in the record" }, { "docid": "22364926", "title": "", "text": "discretion to remand for further proceedings, rather than for benefits. See Connett v. Barnhart, 340 F.3d 871, 874-76 (9th Cir.2003) (citing cases and reaffirming that the reviewing court retains discretion to remand for further proceedings even when the ALJ fails “to assert specific facts or reasons to reject [the claimant’s testimony”); see also Garrison, 759 F.3d at 1021 (noting that a district court retains the flexibility to “remand for further proceedings when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.”). Ill We turn now to Treichler’s claim that the ALJ erred in ruling that Treichler’s statements about the limiting effects of his medical problems were not credible. The ALJ must make two findings before the ALJ can find a claimant’s pain or symptom testimony not credible. 42 U.S.C. § 423(d)(5)(A) (explaining that “[a]n individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability” absent additional findings). “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.’ ” Lingenfelter, 504 F.3d at 1036 (quoting Bunnell, 947 F.2d at 344). Second, if the claimant has produced that evidence, and the ALJ has not determined that the claimant is malingering, the ALJ must provide “specific, clear and convincing reasons for” rejecting the claimant’s testimony regarding the severity of the claimant’s symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.1996). Because the “grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based,” Chenery Corp., 318 U.S. at 87, 63 S.Ct. 454, the agency must explain its reasoning. Consequently, to ensure our appellate review is meaningful, Bunnell, 947 F.2d at 346, we require the ALJ to “specifically identify the testimony [from a claimant] she or he finds not to be credible and ... explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir.2001). That means" } ]

[ { "docid": "22717626", "title": "", "text": "federal claimant failed to abide by a state procedural rule does not, in and of itself, prevent this Court from reaching the federal claim: “[T]he state court must actually have relied on the procedural bar as an independent basis for its disposition of the ease.” Ibid. Furthermore, ambiguities in that regard must be resolved by application of the Long standard. Id., at 328. B The adequate and independent state ground doctrine, and the problem of ambiguity resolved by Long, is of concern not only in cases on direct review pursuant to 28 U. S. C. § 1257, but also in federal habeas corpus proceedings pursuant to 28 U. S. C. §2254. Wainwright v. Sykes made clear that the adequate and independent state ground doctrine applies on federal habeas. 433 U. S., at 81, 87. See also Ulster County Court v. Allen, 442 U. S. 140, 148 (1979). Under Sykes and its progeny, an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the ha-beas petitioner can show “cause” for the default and “prejudice attributable thereto,” Murray v. Carrier, 477 U. S. 478, 485 (1986), or demonstrate that failure to consider the federal claim will result in a “‘fundamental miscarriage of justice.’” Id., at 495, quoting Engle v. Isaac, 456 U. S. 107, 135 (1982). See also Smith v. Murray, 477 U. S. 527, 537 (1986). Conversely, a federal claimant’s procedural default precludes federal habeas review, like direct review, only if the last state court rendering a judgment in the case rests its judgment on the procedural default. See Caldwell v. Mississippi, 472 U. S., at 327; Ulster County Court v. Allen, 442 U. S., at 152-154. Moreover, the question whether the state court indeed has done so is sometimes as difficult to answer on habeas review as on direct review. Just as this Court under § 1257 encounters state-court opinions that are unclear on this point, so too do the federal courts under §2254. Habeas review thus presents the same problem of ambiguity that this Court resolved in Michigan v. Long. We" } ]

[ { "docid": "23520240", "title": "", "text": "1188 n. 40 (quoting Hathorn v. Lovorn, 457 U.S. 255, 263, 102 S.Ct. 2421, 2426-27, 72 L.Ed.2d 824 (1982)). In the direct review setting, application of the adequate and independent state ground doctrine is jurisdictional: resolution of a federal issue could not affect a judgment that was adequately supported by an alternative ruling of state law, and therefore, review by the Supreme Court “could amount to nothing more than an advisory opinion” in violation of U.S. Const, art. III. Herb v. Pitcairn, 324 U.S. 117, 125-26, 65 S.Ct. 459, 462-64, 89 L.Ed. 789 (1945). Although well-established in the direct review context, it was not until the relatively recent decision in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), that the Supreme Court extended the adequate and independent state ground doctrine to federal habeas review. Id. at 87, 97 S.Ct. at 2506; see also County Court of Ulster County v. Allen, 442 U.S. 140, 148, 99 S.Ct. 2213, 2220, 60 L.Ed.2d 777 (1979). In the habeas context, however, the adequate and independent state ground doctrine is not jurisdictional but “is grounded in concerns of comity and federalism.” Coleman, 501 U.S. at 730, 111 S.Ct. at 2554, (discussing the different underpinnings of the adequate and independent state ground doctrine on direct and collateral review). The doctrine provides that “[w]hen a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.” Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 2593, 115 L.Ed.2d 706 (1991). Review is precluded “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. at 2565; see Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043-44, 103 L.Ed.2d 308 (1989); Ballinger v. Kerby, 3 F.3d 1371, 1375 (10th Cir.1993). The law of procedural defaults thus applies to preclude federal habeas review of" }, { "docid": "4922773", "title": "", "text": "the record that the plea was knowing and voluntary. We agree with the Commonwealth that the claim is both proeedurally defaulted and without merit. Under Virginia law, trial errors that could have been but were not presented on direct appeal may not be raised in habeas corpus proceedings. Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680, 682 (1974), cert. denied sub nom., 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975). Such claims are also barred on federal habeas review. Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1042-43, 103 L.Ed.2d 308 (1989); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). Only when the petitioner shows “cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrates that failure to consider the claims will result in a fundamental miscarriage of justice,” may the federal habeas court consider the challenge. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991); Harris, 489 U.S. at 262, 109 S.Ct. at 1042-43. Savino alleges a trial court error of the sort barred by Slayton and Dodson. He argues, however, that his claim should be considered on the merits because it is akin to an ineffective assistance of counsel claim which could not have been raised on direct appeal. The comparison fails, however. The error was allegedly committed by the court, not counsel, and thus Savino’s attorneys would not have had to concede ineffectiveness in order to present the challenge. Savi- no’s own argument that the error is obvious from the transcript of the plea proceeding further demonstrates that the claim could have been raised on direct appeal. Because Savino failed to present the issue on direct appeal when he could have done so, the state habeas court found the claim procedurally defaulted under Slayton. The Virginia Supreme Court then refused to review the claim as procedurally defaulted, thus foreclosing federal court review under Sykes and its progeny. See Coleman, 501 U.S. at 750, 111 S.Ct. at 2565 (the procedural default" }, { "docid": "6932092", "title": "", "text": "Court vacated the judgment in Smith III. Our task on remand is not, however, simply to apply Maynard and Clemons, for the State continues vigorously to advance the procedural bar as an alternative means of preventing consideration of the merits of this claim. In addition, Smith has asked us to consider two issues never before raised in his briefs. II. ANALYSIS A. Procedural Bar of the Aggravating Circumstance Claim It is by now well-established that federal habeas courts will not consider claims a petitioner has defaulted in state court absent a showing of cause for the default and resulting prejudice, or a show ing that failure to consider the claim will result in a fundamental miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). As this doctrine rests on the notion that a state court’s reliance on a procedural bar functions as an adequate and independent state ground supporting the judgment, Coleman v. Thompson, — U.S. -, -, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991), federal courts must first determine whether the state court judgment rests on state law. In this task we are aided by Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), which holds that habeas courts will presume that there is an independent and adequate state ground when “the last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” Id. at 263, 109 S.Ct. at 1043 (internal quotation omitted). We have little difficulty concluding that the last state court to consider this claim “clearly and expressly” relied on a state procedural rule to bar review. In the first post-conviction proceeding, the Mississippi Supreme Court pointed out that Smith did not object to the giving of the “especially heinous” instruction at the sentencing phase and did not raise it on direct appeal, barring him from raising it in post-conviction proceedings. (For the sake of clarity, we will refer to these" }, { "docid": "15464097", "title": "", "text": "Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). This is true whether the state law ground is substantive or procedural. Id. If a state prisoner “has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Id. at 750, 111 S.Ct. 2546. That is, a petitioner may not raise on federal habeas a federal constitutional right he could not raise in state court because of procedural default. Engle v. Isaac, 456 U.S. 107, 128-29,102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Absent cause and prejudice, a federal habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal habe-as corpus review if the State court relied on that procedural bar. Murray v. Carrier, 744 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Engle, 456 U.S. at 128-29, 102 S.Ct. 1558; Boyle v. Million, 201 F.3d 711, 716 (6th Cir.2000). The failure to raise a constitutional issue on direct appeal is subject to the cause and prejudice standard of Wain-might v. Sykes. Murray, 477 U.S. at 485, 106 S.Ct. 2639; Mopes v. Coyle, 171 F.3d 408, 413 (6th Cir.1999); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir.1994). The failure to present an issue to the state supreme court on discretionary review constitutes procedural default. O’Sullivan v. Boerckel, 526 U.S. 838, 845-48, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). As is well-established (although sometimes muddled by courts), two types of procedural barriers might preclude federal review of claims in a habeas petition. The first type, procedural default, is a judicially created rule, grounded in fealty to comity values and requiring federal courts to respect state court judgments that are based on an “independent and" }, { "docid": "6010641", "title": "", "text": "denied. II. VERA’S REMAINING CLAIMS ARE NOT REVIEWABLE BY THIS COURT BECAUSE VERA FAILED TO OBJECT AT TRIAL AND THE STATE APPELLATE DECISION WAS BASED ON THAT PROCEDURAL BAR Petitioner Vera next argues that he was denied his due process right to a fair trial by the prosecutor’s improper summation remarks and the trial court’s unbalanced interested witness charge, neither of which he objected to at trial. The Supreme Court has made clear that the “adequate and independent state ground doctrine applies on federal habeas,” such that “an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show ‘cause’ for the default and ‘prejudice attributable thereto,’ or demonstrate that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.’ ” Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) (citations omitted); accord, Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557, 115 L.Ed.2d 640 (1991). The Appellate Division stated that “with respect to defendant’s remaining claims, both of which are wholly unpreserved, reversal is not warranted in the interest of justice,” and then explained why that was so. People v. Vera, 182 A.D.2d at 574, 585 N.Y.S.2d at 700 (emphasis added). Failure to object at trial is an independent and adequate state procedural bar. N.Y. CPL § 470.05; see also, e.g., Wainwright v. Sykes, 433 U.S. 72, 86, 90, 97 S.Ct. 2497, 2506-08, 53 L.Ed.2d 594 (1977) (contemporaneous objection rule is an adequate and independent state ground); Murray v. Carrier, 477 U.S. 478, 485-92, 497,106 S.Ct. 2639, 2644-48, 2650, 91 L.Ed.2d 397 (1986) (same), Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.1990) (violation of New York’s contemporaneous objection rule, N.Y.C.P.L. § 470.05, is an adequate and independent state ground); Anderson v. Senkawksi, 1992 WL 225576 at *4 (same). The People, in their brief to the Appellate Division, argued that Vera’s failure to object left those issues unpreserved for appeal, and that in any event, the claims were meritless. (See People’s App.Div. Brief at 12-17.) It" }, { "docid": "11090680", "title": "", "text": "postconviction proceedings absent a showing of “good cause.” Id. We must infer from that clear statement a refusal to reach the merits of all issues presented to it, including Andrews’ ineffectiveness claims. Under the procedural default rule developed in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and subsequent cases: where a state court finding of procedural default is an adequate and independent state ground, the procedural default bars federal habeas review of the claims unless the petitioner can demonstrate “cause” for his procedural default and “prejudice attributable thereto,” or that the failure to considér the federal claim will result in a “fundamental miscarriage of justice.” Shafer v. Stratton, 906 F.2d 506, 508 (10th Cir.1990) (quoting Murray v. Carrier, 477 U.S. at 485, 106 S.Ct. at 2643-44); see also Dugger v. Adams, 489 U.S. at 411-12 n. 6, 109 S.Ct. at 1217-18 n. 6. Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), adopted the “plain statement” rule of Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), for ambiguous state court references to procedural bar. Thus, “a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. at 263, 109 S.Ct. at 1043 (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638-39, 86 L.Ed.2d 231 (1985)). However, as the Supreme Court made clear in Coleman v. Thompson, — U.S.-, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), this presumption that a state court decision relies on federal grounds in the absence of a clear statement to the contrary only arises if “the decision of the last state court to which the petitioner presented his federal claims ... fairly appear[s] to rest primarily on federal law or to be interwoven with federal law.” Id. Ill S.Ct. at 2557. As we reiterated in Shafer, that state court finding must be an" }, { "docid": "1044917", "title": "", "text": "of the issues he raises on appeal. We therefore set forth the standard for procedural default here. The Supreme Court has stated that “in all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas corpus review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 749, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (emphasis added). A federal habeas petitioner can proeedurally default a claim by “failing to obtain consideration of a claim by a state court, either due to the petitioner’s failure to raise that claim before the state courts while state-court remedies are still available or due to a state procedural rule that prevents the state courts from reaching the merits of the petitioner’s claim.” Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir.2000) (citing Wainwright v. Sykes, 433 U.S. 72, 80, 84-87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). When the state procedural rule prevents the state court from hearing the merits of the claim, procedural default occurs when 1) a petitioner failed to comply with the rule, 2) the state actually enforced the rule against the petitioner, and 3) the rule is an “adequate and independent” state ground foreclosing review of a federal constitutional claim. Willis v. Smith, 351 F.3d 741, 744 (6th Cir.2003). Failure to comply with well-established and normally enforced procedural rules usually constitutes “adequate and independent” state grounds for foreclosing review. See id. at 745. A petitioner may avoid this procedural default only by showing that there was cause for the default and prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the procedural default in the petitioner’s case. See Sykes, 433 U.S. at 87, 97 S.Ct. 2497. A showing of cause requires more than the mere proffer of an excuse. Rather," }, { "docid": "653939", "title": "", "text": "‘ “clearly and expressly” ’ states that its judgment rests on a state procedural bar.” Id. at 1043, 103 S.Ct. at 3478, quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985). In the instant case, the Harris rule is not an issue because the state court ruled adversely to petitioner on one of his claims — plainly stating that its decision rested on independent state grounds — and further because petitioner failed to raise his other federal claims on direct appeal in state court. Following the “well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts,” see Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 2503, 53 L.Ed.2d 594 (1977), citing Fox Film Corp. v. Muller, 296 U.S. 207, 56 S.Ct. 183, 80 L.Ed. 158 (1935), the Supreme Court has held that a procedural waiver under state law sufficient to prevent review of the defendant’s substantive claim in the state courts also constitutes an independent and adequate state ground that bars federal consideration of the substantive claim on habeas corpus. Id. at 87, 97 S.Ct. at 2506. Thus, under Sykes and its progeny a petitioner seeking habeas relief may not raise a claim upon which he has procedurally defaulted in the state courts unless he is able to show cause for the default and prejudice resulting therefrom. Wainwright, 433 U.S. at 87-91, 97 S.Ct. at 2506-08; Engle v. Isaac, 456 U.S. 107, 124-35, 102 S.Ct. 1558, 1570-75, 71 L.Ed.2d 783 (1982); Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989). A. The Lineup and Arraignment Claims Petitioner admits that the lineup and arraignment claims “were procedurally barred in New York, because his initial post-conviction attorney did not raise them on direct appeal to the Appellate Division.” Gonzalez makes no attempt to show that “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639," }, { "docid": "11090681", "title": "", "text": "S.Ct. 3469, 77 L.Ed.2d 1201 (1983), for ambiguous state court references to procedural bar. Thus, “a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. at 263, 109 S.Ct. at 1043 (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638-39, 86 L.Ed.2d 231 (1985)). However, as the Supreme Court made clear in Coleman v. Thompson, — U.S.-, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), this presumption that a state court decision relies on federal grounds in the absence of a clear statement to the contrary only arises if “the decision of the last state court to which the petitioner presented his federal claims ... fairly appear[s] to rest primarily on federal law or to be interwoven with federal law.” Id. Ill S.Ct. at 2557. As we reiterated in Shafer, that state court finding must be an “adequate and independent state ground.” Shafer v. Stratton, 906 F.2d at 508. Accordingly, given the Utah Supreme Court’s clear reliance on procedural bar, if that court’s holding of procedural bar constitutes an adequate and independent state ground, and if Andrews fails to demonstrate cause for his procedural default and prejudice therefrom, or a fundamental miscarriage of justice, this court will not reach the merits of the claims so barred. See Coleman v. Thompson, — U.S. -, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. at 255, 109 S.Ct. at 1038-39; Dugger v. Adams, 489 U.S. at 401, 109 S.Ct. at 1211-12; Murray v. Carrier, 477 U.S. at 487, 106 S.Ct. at 2644-45; Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497. 1. Adequate and Independent State Ground. Andrews argues the Utah Supreme Court has failed to consistently apply the procedural bar rule it applied in Andrews VI, with the result that the court’s finding of procedural default is not an “adequate” state ground. He asserts that procedural default is always excused" }, { "docid": "15464096", "title": "", "text": "Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). “Under [the] AEDPA, if there is no clearly established Federal law, as determined by the Supreme Court, that supports a habeas petitioner’s legal argument, the argument must fail.” Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir.2005) (internal citation omitted). Pursuant to 28 U.S.C. § 2254(e)(1), a determination of a factual issue by a state court shall be presumed correct and the applicant shall have the burden of rebutting the presumption by clear and convincing evidence. McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir.2004). This presumption does not apply to mixed questions of law and fact. Mitchell v. Mason, 325 F.3d 732, 738 (6th Cir.2003). Instead, the “unreasonable application” prong of § 2254(d)(1) applies to mixed questions of law and fact. Id. A federal court will not review a question of federal law decided by an Ohio court if the decision rests “on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). This is true whether the state law ground is substantive or procedural. Id. If a state prisoner “has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Id. at 750, 111 S.Ct. 2546. That is, a petitioner may not raise on federal habeas a federal constitutional right he could not raise in state court because of procedural default. Engle v. Isaac, 456 U.S. 107, 128-29,102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Absent cause and prejudice, a federal habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal habe-as corpus" }, { "docid": "19754454", "title": "", "text": "upon and correct alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam) (internal quotation marks omitted). We may not “consider any federal-law challenge to a state-court decision unless the federal claim ‘was either addressed by or properly presented to the state court that rendered the decision we have been asked to review.’” Howell v. Mississippi, 543 U.S. 440, 443, 125 S.Ct. 856, 160 L.Ed.2d 873 (2005) (per curiam) (quoting Adams v. Robertson, 520 U.S. 83, 86, 117 S.Ct. 1028, 137 L.Ed.2d 203 (1997) (per curiam)). Federal courts “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). “This rule applies whether the state law ground is substantive or procedural.” Id. In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Id. at 750, 111 S.Ct. 2546. Where a state prisoner’s federal claim is waived or precluded by violation of a state procedural rule, it is procedurally defaulted unless the prisoner can demonstrate cause and prejudice. See id. at 732, 111 S.Ct. 2546(noting that “a habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance”); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (applying cause and prejudice standard to contemporaneous objection rule). Preclusion of issues for failure to present them at an earlier proceeding under Arizona" }, { "docid": "13840270", "title": "", "text": "that may stain the record of a state criminal trial. Rather, the remedy is limited to the consideration of federal constitutional claims. See Herrera v. Collins, — U.S. -, -, 113 S.Ct. 853, 860, 122 L.Ed.2d 203 (1993) (affirming that the purpose of federal habeas corpus review is to ensure that individuals are not imprisoned in violation of the Constitution); see also Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391, 77 L.Ed.2d 1090 (1983) (“Federal courts are not forums in which to relitigate state trials.”). Thus, federal habeas review is precluded, as a general proposition, when a state court has reached its decision on the basis of an adequate and independent state-law ground. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1042, 103 L.Ed.2d 308 (1989); Ortiz v. Dubois, 19 F.3d 708, 714 (1st Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 739, 130 L.Ed.2d 641 (1995). A defendant’s failure to object in a timely manner at his state criminal trial may constitute an adequate and independent state ground sufficient to trigger the bar rule so long as the state has a consistently applied contemporaneous objection requirement and the state court has not waived it in the particular case by resting its decision on some other ground. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977); Puleio v. Vose, 830 F.2d 1197, 1199 (1st Cir.1987), cert. denied, 485 U.S. 990, 108 S.Ct. 1297, 99 L.Ed.2d 506 (1988). Hence, a state court decision resting upon a finding of procedural default — such as a decision rooted in a defendant’s noncompliance with an unwaived contemporaneous objection requirement — forecloses federal habeas review unless the petitioner can demonstrate cause for the default and prejudice stemming therefrom, or, alternatively, unless the petitioner can show that a refusal to consider the merits of the constitutional claim will work a miscarriage of justice. See Coleman, 501 U.S. at 750, 111 S.Ct. at 2564; Harris, 489 U.S. at 262," }, { "docid": "17323399", "title": "", "text": "a failure to exhaust state remedies or for a procedural default.\"). . The state did not contend below, nor does it now contend, that Lostutter has any remaining available state remedies. . See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (holding that \"the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule”). . See also Coleman v. Thompson, 501 U.S. 722, 729-31, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991) (\"The doctrine applies also to bar federal habeas when a state court declined to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural requirement.”); Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 2503, 53 L.Ed.2d 594 (1977) (“[I]t is a well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts.”). . See Schlup v. Delo, - U.S. -, -, 115 S.Ct. 851, 860-61, 130 L.Ed.2d 808 (U.S. Jan. 23, 1995) (requiring petitioner to show cause and prejudice excusing failure to comply with state procedural rules); Coleman, 501 U.S. at 750-51, 111 S.Ct. at 2565 (barring federal habeas review of decision based on independent and adequate state ground \"unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law”); Harris, 489 U.S. at 262, 109 S.Ct. at 1043 (”[A]n adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show ‘cause’ for the default and ‘prejudice attributable thereto'_” (citations omitted)). . Cf. Verdin v. O’Leary, 972 F.2d 1467, 1474 (7th Cir.1992) (\"[F]or a constitutional claim to be fairly presented to a state court, both the operative facts and the 'controlling legal principles’ must be submitted to that court.” (citation omitted)). . See Murray, 477 U.S. at 486-87, 106 S.Ct. at 2644 (\"[T]he mere" }, { "docid": "17421000", "title": "", "text": "the separate but related doctrine of procedural default. The procedural default doctrine, which like the exhaustion doctrine is grounded in principles of comity, ' federalism, and judicial efficiency, see Dretke v. Haley, 541 U.S. 386, 124 S.Ct. 1847, 1851-52, — L.Ed.2d - (2004), normally will preclude a federal court from reaching the merits of a habeas claim when either (1) that claim was presented to the state courts and the state-court ruling against the petitioner rests on adequate and independent state-law procedural grounds, or (2) the claim was not presented to the state courts and it is clear that those courts would now hold the claim procedurally barred. See Coleman v. Thompson, 501 U.S. 722, 735 & n. 1, 111 S.Ct. 2546, 2557 & n. 1, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. 255, 263 & n. 9, 109 S.Ct. 1038, 1043 & n. 9, 103 L.Ed.2d 308 (1989); Conner v. McBride, 375 F.3d 643, 648 (7th Cir.2004). Thus, when the habeas petitioner has failed to fairly present to the state courts the claim on which he seeks relief in federal court and the opportunity to raise that claim in state court has passed, the petitioner has procedurally defaulted that claim. Boerckel, 526 U.S. at 853-54, 119 S.Ct. at 1736; see also, e.g., Momient-El, 118 F.3d at 541. The procedural default doctrine does not impose an absolute bar to federal relief, however. “[I]t provides only a strong prudential reason, grounded in ‘considerations of comity and concerns for the orderly administration of justice,’ not to pass upon a defaulted constitutional claim presented for federal habeas review.” Haley, 124 S.Ct. at 1852 (quoting Francis v. Henderson, 425 U.S. 536, 539, 96 S.Ct. 1708, 1710, 48 L.Ed.2d 149 (1976)). The doctrine is therefore subject to equitable exceptions. Id. A procedural default will bar a federal court from granting relief on a habeas claim unless the petitioner demonstrates cause for the default and prejudice resulting therefrom, Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977), or, alternatively, he convinces the court that a miscarriage of justice" }, { "docid": "17646617", "title": "", "text": "carefully weighing all the reasons for accepting a state court’s judgment, a federal court is convinced that a prisoner’s custody ... violates the Constitution, that independent judgment should prevail.” Williams, 529 U.S. at 389, 120 S.Ct. 1495. B. Procedural Default The Respondent concedes that Fuller has exhausted each of the claims he seeks to bring before this Court. {See Resp’t’s Mem. at 17). Nonetheless, even when a petitioner presents a colorable constitutional claim that is fully exhausted, a federal court is precluded from reviewing the claim if the state court’s prior denial of it rested on an adequate and independent state ground. E.g., Lee v. Kemna, 534 U.S. 362, 375, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002); Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1971). A procedural default qualifies as such an adequate and independent state ground, Harris, 489 U.S. at 262, 109 S.Ct. 1038, unless the petitioner can demonstrate “cause for the default and actual prejudice as a result of the alleged violation of federal law, or ... that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir.1996); accord Fama v. Comm’r of Corr. Servs., 235 F.3d 804, 809 (2d Cir.2000). Additionally, when a state court relies on a state procedural bar, the petitioner is precluded from seeking habeas relief even though the state court has ruled in the alternative on the merits of his federal claim. Glenn, 98 F.3d at 724 (quoting Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.1990)). In determining whether a claim may be heard, courts “apply a presumption against finding a state procedural bar and ‘ask not what we think the state court actually might have intended but whether the state court plainly stated its intention.’” Galarza v. Keane, 252 F.3d 630, 637 (2d Cir.2001) (quoting Jones, 229 F.3d at 118). However, when the last court" }, { "docid": "3394500", "title": "", "text": "to hear habeas petitions from state prisoners are barred from reviewing federal questions which the state court declined to hear because the prisoner failed to meet a state procedural requirement. Lambrix v. Singletary, - U.S. -, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997). In such cases, the state judgment is said to rest on independent and adequate state procedural grounds. Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Wamwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Considerations of comity and federalism bar the federal court’s review. Lambrix, — U.S. at - - -, 117 S.Ct. at 1522-23 (“A State’s procedural rules are of vital importance to the orderly administration of its criminal courts; when a federal court permits them to be readily evaded, it undermines the criminal justice system.”). “[A] habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.” Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 640 (1991). Without the “independent and adequate state ground” doctrine, federal courts would be able to review claims the state courts never had a proper chance to consider. Lambrix, — U.S. at -, 117 S.Ct. at 1523. There are, however, exceptions to the bar on habeas review if the prisoner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 749-50, 111 S.Ct. at 2565. Here, although the state did not raise the procedural default issue in the federal habeas court until a motion for reconsideration, the district court ruled that it would consider the procedural default argument on its merits, in the interests of comity. As the district court properly noted, it has the authority to consider the procedural default issue sua sponte. Ortiz v. Dubois, 19 F.3d 708 (1st Cir.1994), cert. denied, 513 U.S." }, { "docid": "9429998", "title": "", "text": "in Brasier has been overruled by the Supreme Court in Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). The Court in Harris began by noting that the procedural default rule, developed in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) and subsequent cases, “has its historical and theoretical basis in the ‘adequate and independent state ground’ doctrine.” Id. 109 S.Ct. at 1042. Thus, where a state court finding of procedural default is an adequate and independent state ground, the procedural default bars federal habeas review of the claims unless the petitioner can demonstrate “cause” for his procedural default and “prejudice attributable thereto,” or that the failure to consider the federal claim will result in a “ ‘fundamental miscarriage of justice.’ ” Murray v. Carrier, 477 U.S. 478, 485, 495-96, 106 S.Ct. 2639, 2643-44, 2649-50, 91 L.Ed.2d 397 (1986) (quoting Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, -, 71 L.Ed.2d 783 (1982)); see also Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 1217-18 n. 6, 103 L.Ed.2d 435 (1989). However, “[t]he question whether a state court’s reference to state law constitutes an adequate and independent state ground for its judgment may be rendered difficult by ambiguity in the state court’s opinion.” Harris, 109 S.Ct. at 1042. In the event of ambiguity, Harris directs us to apply the “plain statement” rule of Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Accordingly, “a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘ “clearly and expressly” ’ states that its judgment rests on a state procedural bar.” Harris, 109 S.Ct. at 1043 (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638-39, 86 L.Ed.2d 231 (1985) (quoting Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476-77, 77 L.Ed.2d 1201 (1983))). Federal courts must not presume a state court relied on procedural bar where the state court opinion does not make that clear." }, { "docid": "22841361", "title": "", "text": "curiam) (quoting Adams v. Robertson, 520 U.S. 83, 86, 117 S.Ct. 1028, 137 L.Ed.2d 203 (1997) (per curiam)). Federal courts “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). “This rule applies whether the state law ground is substantive or procedural.” Id. In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Id. at 750, 111 S.Ct. 2546. Where a state prisoner’s federal claim is waived or precluded by violation of a state procedural rule, it is procedurally defaulted unless the prisoner can demonstrate cause and prejudice. See id. at 732, 111 S.Ct. 2546 (noting that “a habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance”); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (applying cause and prejudice standard to contempo raneous objection rule). Preclusion of issues for failure to present them at an earlier proceeding under Arizona Rule of Criminal Procedure 32.2(a)(3) “are independent of federal law because they do not depend upon a federal constitutional ruling on the merits.” Stewart v. Smith, 536 U.S. 856, 860, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002) (per curiam). C. Cook procedurally defaulted his ineffective assistance of trial counsel claim (claim S). Cook’s claim that the amendment of Rule 32.9(c) somehow excuses the failure of his post-conviction relief counsel to preserve general ineffective assistance of trial counsel claims lacks" }, { "docid": "9944946", "title": "", "text": "habeas petitioner can show “cause” for the default and “prejudice” attributable thereto. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Any procedural default, however, must rest on “adequate and independent” state law grounds. Harris, 489 U.S. at 262, 109 S.Ct. 1038. The District Court concluded that the New Jersey courts had refused to consider Johnson’s claim because his petition was time-barred under N.J.R. 3:22-12, that Johnson procedurally defaulted his death-eligibility claim and did not demonstrate “cause and prejudice.” In a federal habeas proceeding, “review of the district court’s legal conclusions is plenary and factual findings in dispute are reviewed under the clearly erroneous standard.” Bond v. Fulcomer, 864 F.2d 306, 309 (3d Cir.1989). A. The “Independence” Requirement A state procedural ground will not bar federal habeas relief if the state law ground is so “interwoven with federal law” that it can not be said to be independent of the merits of a petitioner’s federal claims. Coleman, 501 U.S. at 740, 111 S.Ct. 2546. Relatedly, “[i]f the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal-court review that might otherwise have been available.” Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). The threshold question, therefore, is whether the New Jersey courts, in denying Johnson’s death-eligibility claim, relied independently on a violation of state procedure or based their decision on the merits of the claim. In Harris v. Reed, supra, the Supreme Court established a “plain statement” rule that there would be no procedural default, for purposes of federal habeas review, unless “the last state court rendering judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” 489 U.S. at 263, 109 S.Ct. 1038. Harris’ s plain statement rule was subsequently narrowed by Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), which established that the first step is. to determine whether the decision of the last state court to which the petitioner presented his federal claims" }, { "docid": "6429334", "title": "", "text": "has not met a state procedural requirement. See Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991); see also Ulster County Court v. Allen, 442 U.S. 140, 148, 99 S.Ct. 2213, 2220, 60 L.Ed.2d 777 (1979); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). If a default occurs, federal relief is foreclosed because the default constitutes an independent and adequate state ground on which the decision rests. See Liebman & Hertz, supra, § 23.1 n. 9. On both direct review and habeas review, the Supreme Court has held that it will not consider an issue of federal law from a judgment of a state court if that judgment rests on a state law ground that is both “independent” of the merits of the federal claim and an “adequate” basis for the court’s decision. See Harris v. Reed, 489 U.S. 255, 260, 109 S.Ct. 1038, 1042, 103 L.Ed.2d 308 (1989); see also Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L.Ed. 158 (1935); Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590, 635-36, 22 L.Ed. 429 (1874). Without the independent and adequate state ground doctrine, habeas petitioners would be able to avoid the exhaustion requirement by failing to satisfy a state’s procedural rules, rendering the defaulted state remedies unavailable. See Coleman, 501 U.S. at 732, 111 S.Ct. at 2555. Thus, “[t]he independent and adequate state ground doctrine ensures that the States’ interest in correcting their own mistakes is respected in all federal habeas cases,” id., by requiring petitioners to satisfy a state’s procedural rules and exhaust their state remedies or face the penalty of having their claims barred from federal habeas review. B. When the district court heard Boerckel’s petition, this Court believed that a federal habeas petitioner forfeited the right to habe-as relief if he did not seek review in a state’s highest court of all the claims presented in his habeas petition. See Nutall v. Greer, 764 F.2d 462, 463-64 (7th Cir.1985); see also Lostutter v. Peters, 50 F.3d" } ]

[ { "docid": "23043294", "title": "", "text": "is a “party in interest” under ERISA § 3(14)(B), 29 U.S.C. § 1002(14)(B). The Act prohibits certain transactions between ERISA plans and their parties in interest. Some of the allegations in the complaint, if true, establish that Frommer participated in such “prohibited transactions” with the Funds by receiving excessive compensation for legal services, obtaining a loan from the Funds, and engaging in similar activities in violation of ERISA §§ 406(a)(1), 408(b), 29 U.S.C. §§ 1106(a)(1), 1108(b). Because these transactions are illegal under the Act, the district courts are authorized by section 502(a)(3) “to redress such violations.” See McDougall v. Donovan, 539 F.Supp. 596, 598-99 (N.D.Ill.1982) (section 502(a)(3) permits court to order equitable relief against party in interest who engages in a prohibited transaction). It is true that section 406(a) only prohibits certain transactions by fiduciaries, and does not expressly bar parties in interest from engaging in these transactions. However, section 502(a)(3)’s language expressly grants equitable power to redress violations of ERISA; prohibited transactions plainly fall within this category. Courts may find it difficult or impossible to undo such illegal transactions unless they have jurisdiction over all parties who allegedly participated in them. In contrast to section 409(a), section 502(a)(3) is not limited to fiduciaries, and there is therefore no reason to exempt parties in interest from this remedial provision when they engage in transactions prohibited by the Act. Conclusion We hold that plaintiffs have stated a claim for relief against Frommer under ERISA sections 406(a)(1) and 502(a)(3). Accordingly, if plaintiffs prevail on the merits, they will be entitled to whatever equitable relief — including the issuance of an injunction or the imposition of a constructive trust upon property improperly received by Frommer — as the district court may deem appropriate. Plaintiffs cannot state a claim against Frommer under section 409(a), however, because he is not a fiduciary; thus they have no remedy against him for damages under ERISA. The judgment of the district court is AFFIRMED IN PART, REVERSED IN PART AND REMANDED for proceedings in accordance with this opinion. The parties shall bear their own costs on appeal. ." } ]

[ { "docid": "12573183", "title": "", "text": "S.Ct. at 2070, and we therefore believe that the analysis of the one provision should apply equally to the other with respect to the question at issue. We therefore hold that section 502(a)(5) does not authorize suits by the Secretary against nonfiduciaries charged solely with participating in a fiduciary breach. B. We now turn to the Secretary’s argument that section 502(a)(5) authorizes him to sue a nonfiduciary who participates in a transaction prohibited by section 406(a)(1). In response to this argument, EMA and Local 98 seem to suggest that the Secretary cannot obtain relief from them even if the transactions at issue are found to be prohibited under section 406(a)(1) of ERISA. Section 406(a)(1) provides that “[a] fiduciary with respect to a plan shall not cause the plan to engage in a [prohibited] transac-tion_” 29 U.S.C. § 1106(a)(1) (emphasis added). Since this language appears on its face to apply only to fiduciaries and not to other parties who participate in prohibited transactions, EMA and Local 98 maintain that the Secretary is attempting to make them liable for a fiduciary’s breach of duty and that such a theory was rejected in Mer-tens. While this argument is not without force, we are ultimately persuaded that it is based on an unduly narrow interpretation of sections 406(a)(1) and 502(a)(5). First, we note that Mertens itself seemed to imply that section 406(a) imposes duties on nonfiduciar-ies who participate in prohibited transactions. After observing that “ERISA contains various provisions that can be read as imposing obligations upon nonfidueiaries,” — U.S. at-, 113 S.Ct. at 2067, the Court cited section 406(a), 29 U.S.C. § 1106(a), as an example and stated that this provision prohibits a nonfiduciary party in interest from “offer[ing] his services” to a plan or “en-gag[ing] in certain other transactions with the plan,” id. at-n. 4, 113 S.Ct. at 2067 n. 4. Second, EMA’s and Local 98’s position is inconsistent with the analysis of two other courts of appeals. In Rowe, the First Circuit, while refusing to accept the argument that the Secretary could sue a nonfiduciary under section 502(a)(5) for knowingly participating in" }, { "docid": "19366521", "title": "", "text": "the attorney was subject to liability under ERISA because, as a “party in interest” under ERISA § 8(14)(B), 29 U.S.C. § 1002(14)(B), the attorney was covered by ERISA’s “prohibited transactions” provisions, §§ 406(a)(1), 408(b), 29 U.S.C. §§ 1106(a)(1), 1108(b). We stated: [ERISA] prohibits certain transactions between ERISA plans and their parties in interest. Some of the allegations in the complaint, if true, establish that [the attorney] participated in such “prohibited transactions” with the Funds by receiving excessive compensation for legal services, obtaining a loan from the Funds, and engaging in similar activities in violation of ERISA §§ 406(a)(1), 408(b), 29 U.S.C. §§ 1106(a)(1), 1108(b). Because these transactions are illegal under the Act, the district courts are authorized by section 502(a)(3) “to redress such violations.” Id. (citations and footnotes omitted). We observed, significantly, that to the extent that some of the attorney’s alleged misdeeds did not fall within the definition of prohibited transactions, ERISA would not provide a remedy. Id. at 874 n. 7. Nieto demonstrates that appellants have not stated a claim against Sherman for which ERISA provides relief. Appellants’ third claim sought “equitable relief” under section 502(a)(3). By seeking equitable relief rather than damages, appellants evidently hoped to avoid Nieto’s rejection of a damages cause of action under § 502(a)(3) against non-fiduciaries. However, while Sherman is a “party in interest” under § 3(14)(B), 29 U.S.C. § 1002(14)(B), and even if appellants may seek “equitable relief” under § 502(a)(3), appellants have not alleged facts that, if true, would establish that Sherman participated in any “prohibited transactions.” In their complaint, appellants simply allege that Sherman “knowingly participated in the breach of trust by Sumitomo in failing to ensure that the first deed was properly recorded.” Because Nieto’s holding extends only to cases in which a non-fiduciary “party in interest” engages in a “prohibited transaction,” Nieto, 845 F.2d at 874 n. 7, appellants may not maintain their claim for “non-fiduciary liability” under ERISA. Therefore, we affirm the district court’s dismissal of appellants’ third cause of action. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. The parties shall bear their own costs. ." }, { "docid": "12573173", "title": "", "text": "could conclude that Local 98 was functionally responsible for EMA’s debt and that, Local 98 therefore benefitted from the repurchase of the note for less than its accounting value. Thus, we hold that the district court should not have granted summary judgment in favor of the defendants on the basis that the two challenged transactions were not prohibited transactions within the meaning of section 406(a)(1)(D). On remand, the district court will need to resolve the two disputed elements of the Secretary’s section 406(a)(1)(D) claim: whether a party to the transactions had the subjective intent to benefit a party in interest and whether any of the trustees knew of or should have known that the transactions were intended for the benefit of a party in interest. III. ERISA Section 502(a)(5) Claims In this section, we consider the Secretary’s claims against the nonfiduciary defendants (EMA and Local 98) pursuant to section 502(a)(5) of ERISA, 29 U.S.C. § 1182(a)(5). The Secretary advances two separate theories: first, that section 502(a)(5) authorizes him to sue nonfiduciaries who knowingly participate in breaches of fiduciary duty by fiduciaries and, second, that section 502(a)(5) authorizes him to sue nonfiduciaries who participate in transactions prohibited by section 406(a)(1). We reject the first theory but accept the latter. A. Section 502(a) of ERISA provides as follows: A civil action may be brought— (1) by a participant or beneficiary— (A) for the relief provided in subsection (e) of this section, or (B) 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; (2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title; (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provisions of this sub-chapter, or (B) to obtain other appropriate equitable relief (i) to redress such violation or (ii) to enforce any provision of this subchapter; (4) by the Secretary, or by a participant, or beneficiary" }, { "docid": "4157329", "title": "", "text": "advise may constitute knowing participation in a fiduciary’s breach. Such a conclusion, however, requires the drawing of inferences in favor of plaintiffs and is improper on summary judgment. On this record, the Court is unwilling to hold as a matter of law that McCarthy’s acts or omissions sufficiently contributed to the trustees’ breaches so as to render him liable as a participating third party. Accordingly, plaintiffs’ summary judgment motion on this claim is denied. 2. Prohibited Transactions As noted above, McCarthy can also be held liable as a nonfiduciary for his participation in transactions prohibited by ERISA Section 406. 29 U.S.C. § 1106. Even those Courts of Appeals that have rejected claims against non-fiduciaries for knowing participation in a fiduciary’s breaches have allowed claims against non-fiduciaries for their participation in prohibited transactions. Reich v. Compton, 57 F.3d 270, 285-87 (3d Cir.1995); Reich v. Rowe, 20 F.3d 25, 31 & n. 7 (1st Cir.1994); see also Nieto v. Ecker, 845 F.2d 868, 873-74 (9th Cir.1988). The reasoning behind the availability of such relief is that ERISA Section 502(a)(3), 29 U.S.C. § 1132(a)(3)(b), authorizes equitable relief to redress acts or practices that violate ERISA and therefore reaches non-fiduciaries who participate in such acts. ERISA Section 406(a)(1) describes the following as prohibited transactions: (A) sale or exchange ... of any property between the plan and a party in interest; (B) lending of money or other extension of credit between the plan and a party in interest; (C) furnishing of goods, services, or facilities between the plan and a party in interest; [or] (D) transfer to, or use by or for the benefit of, a party in interest, of any assets of the plan. 29 U.S.C. § 1106(a)(1). “Parties in interest” include counsel and service providers. 29 U.S.C. § 1002(14)(A)-(B). Plaintiffs contend that the Travelers arrangement and the failure to collect delinquent contributions constitute prohibited transactions and that McCarthy’s participation in these transactions renders him a liable participant. a. Travelers Arrangement As discussed above, questions of fact exist as to whether the Travelers arrangement constituted a prohibited transaction under ERISA. See supra Part I.B.2." }, { "docid": "12573186", "title": "", "text": "in Nieto v. Ecker, 845 F.2d 868 (9th Cir.1988), the court held that a suit seeking appropriate equitable relief could be brought under section 502(a)(3) against a party in interest who had participated in a transaction prohibited under section 406(a). The court explained: It is true that section 406(a) only prohibits certain transactions by fiduciaries, and does not expressly bar parties in interest from engaging in these transactions. However, section 502(a)(3)’s language expressly grants equitable power to redress violations of ERISA; prohibited transactions plainly fall within this category. Courts may find it difficult or impossible to undo such illegal transactions unless they have jurisdiction over all parties who allegedly participated in them. In contrast to section 409(a), section 502(a)(3) is not limited to fiduciaries, and there is no reason to exempt parties in interest from this remedial provision when the engage in transactions prohibited by [ERISA]. Id. at 873-74. Third, we agree with the Secretary that the parallel tax provisions support his position that nonfiduciaries may be held liable for their participation in prohibited transactions. Section 4975 of the Internal Revenue Code, 26 U.S.C. § 4975, imposes taxes on certain persons who participate in prohibited transactions. Section 4975(h) provides that the Secretary of Treasury is required to notify the Secretary of Labor before sending a notice of deficiency with respect to such taxes in order to give the latter a “reasonable opportunity to obtain a correction of the prohibited transaction....” Since “correction of the prohibited transaction” implies an order of restitution directed to the party who participated in the transaction with the plan, this provision buttresses the Secretary’s position. For all of these reasons, we hold that the Secretary can bring an action under section 502(a)(5) against a nonfiduciary who participates in a transaction prohibited by section 406(a). Finally, we disagree with EMA’s contention that even if section 406(a)(1) regulates the behavior of some nonfiduciaries, it does not reach nonfidueiaries that are not parties in interest. As we previously explained, see supra pages 279 to 281, section 406(a)(1)(D) applies to transactions between a plan and a third party when the" }, { "docid": "17519003", "title": "", "text": "for equitable disgorgement of their profits received from engaging in a prohibited transaction in violation of § 406. More importantly, a recent Supreme Court decision supports Useden’s analysis of § 406. In Mertens v. Hewitt Assocs., 508 U.S. 248, 260-61, 113 S.Ct. 2063, 2070-71, 124 L.Ed.2d 161 (1993), the Supreme Court acknowledged in dicta that non-fiduciaries may be sued and required under § 502(a)(5) to disgorge ill-gotten plan assets or profits obtained through participation in transactions prohibited by § 406. The Supreme Court explained that “the ‘equitable relief awardable under § 502(a)(5) includes restitution of ill-gotten plan assets or profits....” Mertens, 508 U.S. at 260, 113 S.Ct. at 2070-71. The Supreme Court held that non-fiduciaries may not be liable for the legal remedy of compensatory damages for breach of fiduciary duties because ERISA contains no provision requiring non-fiduciaries to avoid participation in a fiduciary’s breach of fiduciary duty. However, the Supreme Court also contrasted the lack of any ERISA provision regarding a non-fiduciary’s participation in a fiduciary’s breach with other ERISA provisions, such as § 406 “that can be read as imposing obligations upon nonfiduciaries....” Id. at 253-54, 113 S.Ct. at 2067. As an example of a provision that imposes such an obligation, the Supreme Court cited § 406(a)’s prohibition on “parties in interest” offering services or engaging in other transactions with the plan. Id. at 254 n. 4, 113 S.Ct. at 2067 n. 4. The Supreme Court further stated that professional service providers “must disgorge assets and profits obtained through participation as parties-in-interest in transactions prohibited by § 406, and pay related civil penalties or excise taxes....” Id. at 262, 113 S.Ct. at 2071-72 (citations omitted). While Mertens involved service providers, the concept that “parties in interest” can be sued for disgorgement of profits for participating in a transaction prohibited by § 406 is no less applicable to other non-fiduciary “parties in interest,” such as the Ficklings. See 29 U.S.C. § 1002(14)(B) (ERISA § 3(14)(B)) (including service providers within the definition of “parties in interest”). Even though disgorgement of profits may produce money, Mertens makes it clear that disgorgement" }, { "docid": "17519023", "title": "", "text": "408(e) exemp tion does not apply to the Plan’s stock purchase because the Plan paid more than adequate consideration for the stock. The issue of whether the consideration was adequate was never resolved in the district court and is not before this court on appeal. Instead, the parties and the court have assumed arguendo for this appeal that SCNB paid more than adequate consideration for the allegedly worthless stock. See infra note 20. . 29 U.S.C. § 502(a)(2) refers to appropriate relief under § 1109 of Title 29, the codified version of § 409 of ERISA. . In holding that a non-fiduciary cannot be sued for breach of fiduciary duties in Reich v. Rowe, 20 F.3d 25 (1st Cir.1994), the First Circuit also compared § 409 against § 406 and contrasted actions against non-fiduciaries for participation in a fiduciary’s breach with actions against non-fiduciary \"parties in interest” for participation in prohibited transactions. The First Circuit concluded that \"[although fiduciary breaches also violate ERISA, non-fiduciaries cannot, by definition, engage in the act or practice of breaching a fiduciary duty. Non-fiduciaries can, however, engage in the act or practice of transacting with an ERISA plan.\" Id. at 31 n. 7. . The Third and Tenth Circuits also found that the Supreme Court in Mertens implied that a non-fiduciary \"party in interest” may be liable under § 502(a)(5) for participating in transactions prohibited by § 406. Reich v. Compton, 57 F.3d 270, 285 (3d Cir.1995); Reich v. Stangl, 73 F.3d 1027, 1032 (10th Cir.1996). . In Lockheed Corp. v. Spink, 517 U.S. 882, 116 S.Ct. 1783, 135 L.Ed.2d 153 (1996), the Supreme Court acknowledged that Mertens's statements about § 406 were dicta, but declined to retreat from that dicta and stated again, albeit in dicta, that \"a party in interest who benefitted from an impermissible transaction can be held liable under ERISA.” Id. at-n. 3, 116 S.Ct. at 1789 n. 3. . ERISA’s statement of purpose provides \"that the growth in size, scope, and numbers of employee benefit plans in recent years has been rapid and substantial; that the operational scope and economic" }, { "docid": "17518997", "title": "", "text": "For example, ERISA sections 502(a)(3) and 502(a)(5) authorize suits to enjoin or obtain other equitable relief for “any act or practice” violating either the statute or the terms of a plan, without restricting the types of parties who may be so sued. ERISA section 3(lj)(B), moreover, broadly defines the “parties in interest” unth whom plans are prohibited to enter into certain transactions under section j06(a). Significantly, however, Congress expressly limited the scope of sections 502(a)(3) and 502(a)(5) to equitable remedies, and likewise limited section 409(a) to provide a right of action only against fiduciaries. It is telling that, despite textual treatment of non-fiduciaries in various other parts of the ERISA scheme, provisions [§§ 409 and 502(a)(2)] relevant to appellant’s theory contain no textual support for a claim for monetary damages against non-fiduciaries. We cannot infer that Congress’s silence is accidental in an area where Congress has already said so much out loud. Id. at 1581-82 (citations omitted) (emphasis supplied). Construing first §§ 409 and 502(a)(2), Useden holds only that non-fiduciaries cannot be sued for breach of fiduciary duties because § 409 contains no references to non-fiduciaries and because Congress expressly limited liability in §§ 409 and 502(a)(2) to fiduciaries. In reaching this holding, Useden then contrasts §§ 409 and 502(a)(2) with §§ 406 and 502(a)(5) and answers in dicta the very different question posed here regarding who can be sued for equitable relief under § 502(a)(5) for engaging in stock transactions prohibited by § 406. In short, who can the Secretary sue for acts that violate ERISA § 406? Useden directly points to a “party in interest” who participates in a prohibited transaction in violation of § 406 as an example of a non-fiduciary against whom relief may be sought under § 502(a)(5). Id. at 1581. This is precisely the Secretary’s claim against the Ficklings in this case. In addition to pointing out ERISA’s textual treatment of “parties in interest” in § 406, Useden goes further and concludes these “parties in interest” can be sued for equita ble relief under § 502(a)(5) because § 502(a)(5) does not restrict the type" }, { "docid": "11510993", "title": "", "text": "406 was to make illegal per se the types of transactions that experience had shown to entail a high potential for abuse.”). See also Harris Trust and Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 241, 248, 120 S.Ct. 2180, 147 L.Ed.2d 187 (2000) (unanimous op.); McDannold v. Star Bank, N.A., 261 F.3d 478, 485-86 (6th Cir.2001); Whitfield v. Lindemann, 853 F.2d 1298, 1303 (5th Cir.) (holding attorney liable as a nonfiduciary), cert. denied sub nom. Klepak v. Dole, 490 U.S. 1089, 109 S.Ct. 2428, 104 L.Ed.2d 986 (1989). When a plaintiff shows that a fiduciary “caused the plan to engage in an allegedly unlawful transaction” listed in § 406(a)(1), 29 U.S.C. § 1106(a)(1), the fiduciary, in contrast to the participating interested party, may be held personally responsible for monetary damages under § 409(a), 29 U.S.C. § 1109(a), “for any losses incurred by the plan, any ill-gotten profits, and other equitable and remedial relief deemed appropriate by the court.” Lockheed Corp. v. Spink, 517 U.S. at 888, 116 S.Ct. 1783. Although the claim against the party in interest in Harris Trust was brought under § 406 for participation in designated prohibited transactions, the Supreme Court’s broad language indicated that ERISA § 502(a)(3) authorizes a private cause of action for “appropriate equitable relief’ to redress any violations of ERISA’s Title I, which would include violations of § 404’s fiduciary duties. In its ruling, the high court stated that § 502(a)(3) “admits of no limit on the universe of possible defendants” and “the focus ... is on redressing the fact or practice which violates any provision of [ERISA Title I].” Harris Trust, 530 U.S. at 246-47, 120 S.Ct. 2180 (contrasting the fact that § 503(a) “makes no mention at all of which parties may be proper defendants” while other provisions “do expressly address who may be a defendant.”). Thus it would appear that a party-in-interest’s liability under Harris Trust applies beyond prohibited transactions with the plan under § 406 to a knowing participation in a fiduciary’s breach of fiduciary duties under § 404(a). See Rudowski v. Sheet Metal Workers Intern." }, { "docid": "12573185", "title": "", "text": "a frivolous breach, suggested that the Secretary could maintain a suit under that provision against a party in interest who participated in a transaction prohibited under section 406(a)(1). The court observed: Congress proscribed several “acts or practices” in ERISA’s substantive provisions that involve nonfiduciaries_ See Mertens, — U.S. at - & n. 4, 113 S.Ct. at 2067 & n. 4. For example, 29 U.S.C. § 1106(a)(1) prohibits certain transactions between “parties in interest,” see swpra, note 2, and ERISA plans.... 20 F.3d at 31 (footnote omitted). The court then added: The fact that [section 406] imposes the duty to refrain from prohibited transactions on fiduciaries and not on the parties in interest is irrelevant for our purposes because [section 502(a)(5) ] reaches “acts or practices” that violate ERISA and prohibited transactions violate [section 406]. Although fiduciary breaches also violate ERISA, nonfiduciaries cannot, by definition, engage in the act or practice breaching a fiduciary duty. Nonfiduciaries can, however, engage in the act or practice of transacting with an ERISA plan. Id. at 31, n. 7. Similarly, in Nieto v. Ecker, 845 F.2d 868 (9th Cir.1988), the court held that a suit seeking appropriate equitable relief could be brought under section 502(a)(3) against a party in interest who had participated in a transaction prohibited under section 406(a). The court explained: It is true that section 406(a) only prohibits certain transactions by fiduciaries, and does not expressly bar parties in interest from engaging in these transactions. However, section 502(a)(3)’s language expressly grants equitable power to redress violations of ERISA; prohibited transactions plainly fall within this category. Courts may find it difficult or impossible to undo such illegal transactions unless they have jurisdiction over all parties who allegedly participated in them. In contrast to section 409(a), section 502(a)(3) is not limited to fiduciaries, and there is no reason to exempt parties in interest from this remedial provision when the engage in transactions prohibited by [ERISA]. Id. at 873-74. Third, we agree with the Secretary that the parallel tax provisions support his position that nonfiduciaries may be held liable for their participation in prohibited transactions." }, { "docid": "19366520", "title": "", "text": "an attorney who had performed services for an ERISA plan could be held liable under ERISA despite the fact that he was not a plan fiduciary. We held, first, that the attorney could not be sued under ERISA § 409(a), 29 U.S.C. § 1109(a), because that section authorized actions only against fiduciaries. 845 F.2d at 873. We next addressed plaintiffs’ contention that “the broad equitable powers conferred on [the court] by ERISA section 502(a)(3) ... authorizes the relief [plaintiffs] seek.” Id. We noted that in Foltz v. U.S. News & World Report, 627 F.Supp. 1143, 1167-68 (D.D.C.1986), the court held that the language of this section permitted the equivalent of an action for damages under section 409(a) against non-fiduciaries who participated in a breach of trust by fiduciaries. The Nieto court, however, refused to adopt Foltz’s reasoning. 845 F.2d at 873. We stated that “Permitting recovery of damages under section 502(a)(3) would render section 409(a) superfluous, a result contrary to a fundamental canon of statutory construction.” Id. (citations omitted). Nevertheless, we held in Nieto that the attorney was subject to liability under ERISA because, as a “party in interest” under ERISA § 8(14)(B), 29 U.S.C. § 1002(14)(B), the attorney was covered by ERISA’s “prohibited transactions” provisions, §§ 406(a)(1), 408(b), 29 U.S.C. §§ 1106(a)(1), 1108(b). We stated: [ERISA] prohibits certain transactions between ERISA plans and their parties in interest. Some of the allegations in the complaint, if true, establish that [the attorney] participated in such “prohibited transactions” with the Funds by receiving excessive compensation for legal services, obtaining a loan from the Funds, and engaging in similar activities in violation of ERISA §§ 406(a)(1), 408(b), 29 U.S.C. §§ 1106(a)(1), 1108(b). Because these transactions are illegal under the Act, the district courts are authorized by section 502(a)(3) “to redress such violations.” Id. (citations and footnotes omitted). We observed, significantly, that to the extent that some of the attorney’s alleged misdeeds did not fall within the definition of prohibited transactions, ERISA would not provide a remedy. Id. at 874 n. 7. Nieto demonstrates that appellants have not stated a claim against Sherman for" }, { "docid": "17519001", "title": "", "text": "from entering into that same transaction with a fiduciary. This argument, however, ignores key differences in the statutory language of § 406 and § 409, plus the Supreme Court’s recent decision in Mertens recognizing § 406’s prohibition on “parties in interest” engaging in transactions with an ERISA plan. First, as to the statutory language, § 409 provides that a fiduciary “shall be personally liable” for breaches of fiduciary duties. In contrast, § 406 does not address, much less limit, who shall be personally liable; instead § 406 prescribes the type of transactions that ERISA prohibits. While § 406 does instruct fiduciaries—typically the plan trustee—not to cause the plan to enter into transactions with “parties in interest,” § 406 also serves to prohibit transactions between a fiduciary and a “party in interest.” Even if § 406 imposes an affirmative duty on fiduciaries not to cause the plan to enter into certain prohibited transactions, this in no sense lessens the fact that a transaction between a plan and a “party in interest” remains a prohibited transaction under § 406. See Useden,, 947 F.2d at 1581-82; Reich v. Stangl, 73 F.3d 1027, 1030-31 (10th Cir. 1996); Reich v. Rowe, 20 F.3d 25, 31 n. 7 (1st Cir.1994); Reich v. Compton, 57 F.3d 270, 285-86 (3d Cir.1995); Nieto v. Ecker, 845 F.2d 868, 873-74 (9th Cir.1988). Second, § 502(a)(2) limits the Secretary to only “appropriate relief under section [409],” and then § 409 limits personal liability to fiduciaries. In contrast, § 502(a)(5), as Use-den recognizes, permits the Secretary to obtain equitable relief to address any act or practice that violates § 406 .without restricting who may be sued. See Useden, 947 F.2d at 1581. As “parties in interest” to a prohibited transaction, the Ficklings engaged in an act or practice that violates ERISA. Section 502(a)(5) thus expressly authorizes the Secre tary to obtain appropriate equitable relief from the Ficklings to redress that ERISA violation. While the Ficklings may not be subjected to legal claims for compensatory damages for joining in a fiduciary’s breach under § 409, they may be liable as “parties in interest”" }, { "docid": "22110325", "title": "", "text": "from use of the plan assets transferred to it. App. 41. Salomon moved for summary judgment, arguing that § 502(a)(3), when used to remedy a transaction prohibited by § 406(a), authorizes a suit only against the party expressly constrained by § 406(a) — the fiduciary who caused the plan to enter the transaction — and not against the counterparty to the transaction. See § 406(a)(1), 29 U. S. C. § 1106(a)(1) (“A fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction...” (emphasis added)). The District Court denied the motion, holding that ERISA does provide a private cause of action against nonfiduciaries who participate in a prohibited transaction, but granted Salomon’s subsequent motion for certification of the issue for interlocutory appeal under 28 U. S. C. § 1292(b). The Court of Appeals for the Seventh Circuit reversed. 184 F. 3d 646 (1999). It began with the observation that § 406(a), by its terms and like several of its neighboring provisions, e.g., §404, governs only the conduct of fiduciaries, not of counterparties or other nonfiduciaries. See id., at 650. The court next posited that “where ERISA does not expressly impose a duty, there can be no cause of action,” ibid., relying upon dictum in our decision in Mertens v. Hewitt Associates, 508 U. S. 248, 254 (1993), that § 502(a)(3) does not provide a private cause of action against a nonfiduciary for knowing participation in a fiduciary’s breach of duty. The Seventh Circuit saw no distinction between the Mertens situation (involving §404) and the instant case (involving §406), explaining that neither section expressly imposes a duty on nonfidueiaries. Finally, in the Seventh Circuit’s view, Congress’ decision to authorize the Secretary of Labor to impose a civil penalty on a nonfiduciary “party in interest” to a § 406 transaction, see § 502(i), simply confirms that Congress deliberately selected one enforcement tool (a civil penalty imposed by the Secretary) instead of another (a civil action under § 502(a)(3)). Accordingly, the Seventh Circuit held that a nonfiduciary cannot be" }, { "docid": "17519002", "title": "", "text": "§ 406. See Useden,, 947 F.2d at 1581-82; Reich v. Stangl, 73 F.3d 1027, 1030-31 (10th Cir. 1996); Reich v. Rowe, 20 F.3d 25, 31 n. 7 (1st Cir.1994); Reich v. Compton, 57 F.3d 270, 285-86 (3d Cir.1995); Nieto v. Ecker, 845 F.2d 868, 873-74 (9th Cir.1988). Second, § 502(a)(2) limits the Secretary to only “appropriate relief under section [409],” and then § 409 limits personal liability to fiduciaries. In contrast, § 502(a)(5), as Use-den recognizes, permits the Secretary to obtain equitable relief to address any act or practice that violates § 406 .without restricting who may be sued. See Useden, 947 F.2d at 1581. As “parties in interest” to a prohibited transaction, the Ficklings engaged in an act or practice that violates ERISA. Section 502(a)(5) thus expressly authorizes the Secre tary to obtain appropriate equitable relief from the Ficklings to redress that ERISA violation. While the Ficklings may not be subjected to legal claims for compensatory damages for joining in a fiduciary’s breach under § 409, they may be liable as “parties in interest” for equitable disgorgement of their profits received from engaging in a prohibited transaction in violation of § 406. More importantly, a recent Supreme Court decision supports Useden’s analysis of § 406. In Mertens v. Hewitt Assocs., 508 U.S. 248, 260-61, 113 S.Ct. 2063, 2070-71, 124 L.Ed.2d 161 (1993), the Supreme Court acknowledged in dicta that non-fiduciaries may be sued and required under § 502(a)(5) to disgorge ill-gotten plan assets or profits obtained through participation in transactions prohibited by § 406. The Supreme Court explained that “the ‘equitable relief awardable under § 502(a)(5) includes restitution of ill-gotten plan assets or profits....” Mertens, 508 U.S. at 260, 113 S.Ct. at 2070-71. The Supreme Court held that non-fiduciaries may not be liable for the legal remedy of compensatory damages for breach of fiduciary duties because ERISA contains no provision requiring non-fiduciaries to avoid participation in a fiduciary’s breach of fiduciary duty. However, the Supreme Court also contrasted the lack of any ERISA provision regarding a non-fiduciary’s participation in a fiduciary’s breach with other ERISA provisions, such as §" }, { "docid": "17519004", "title": "", "text": "406 “that can be read as imposing obligations upon nonfiduciaries....” Id. at 253-54, 113 S.Ct. at 2067. As an example of a provision that imposes such an obligation, the Supreme Court cited § 406(a)’s prohibition on “parties in interest” offering services or engaging in other transactions with the plan. Id. at 254 n. 4, 113 S.Ct. at 2067 n. 4. The Supreme Court further stated that professional service providers “must disgorge assets and profits obtained through participation as parties-in-interest in transactions prohibited by § 406, and pay related civil penalties or excise taxes....” Id. at 262, 113 S.Ct. at 2071-72 (citations omitted). While Mertens involved service providers, the concept that “parties in interest” can be sued for disgorgement of profits for participating in a transaction prohibited by § 406 is no less applicable to other non-fiduciary “parties in interest,” such as the Ficklings. See 29 U.S.C. § 1002(14)(B) (ERISA § 3(14)(B)) (including service providers within the definition of “parties in interest”). Even though disgorgement of profits may produce money, Mertens makes it clear that disgorgement of profits is a distinctly equitable remedy different from the legal remedy of compensatory damages for breach of fiduciary duty. See Mertens 508 U.S. at 260, 113 S.Ct. at 2070-71. The Court’s definition of appropriate equitable relief under § 502(a)(5) clearly encompasses the fruits of a prohibited transaction from “parties in interest” like the Ficklings. In sum, under § 502(a)(5), the Secretary may sue the Ficklings as “parties in interest” for equitable relief for engaging in a prohibited transaction with SCNB in violation of § 406. Therefore, the district court erred in granting summary judgment to the Ficklings. IV. PRIVATE LITIGANTS’ SETTLEMENT DOES NOT BAR SECRETARY’S ACTION The Ficklings and SCNB next contend that the Knop private settlement bars the Secretary’s action against them. This issue requires us to examine the Secretary’s special statutory role in seeking relief and assessing civil penalties for ERISA violations. A. Secretary’s Statutory Role In § 502(a), Congress granted the Secretary an independent and unqualified right to sue and seek redress for ERISA violations because ERISA plans significantly affect the" }, { "docid": "12573184", "title": "", "text": "liable for a fiduciary’s breach of duty and that such a theory was rejected in Mer-tens. While this argument is not without force, we are ultimately persuaded that it is based on an unduly narrow interpretation of sections 406(a)(1) and 502(a)(5). First, we note that Mertens itself seemed to imply that section 406(a) imposes duties on nonfiduciar-ies who participate in prohibited transactions. After observing that “ERISA contains various provisions that can be read as imposing obligations upon nonfidueiaries,” — U.S. at-, 113 S.Ct. at 2067, the Court cited section 406(a), 29 U.S.C. § 1106(a), as an example and stated that this provision prohibits a nonfiduciary party in interest from “offer[ing] his services” to a plan or “en-gag[ing] in certain other transactions with the plan,” id. at-n. 4, 113 S.Ct. at 2067 n. 4. Second, EMA’s and Local 98’s position is inconsistent with the analysis of two other courts of appeals. In Rowe, the First Circuit, while refusing to accept the argument that the Secretary could sue a nonfiduciary under section 502(a)(5) for knowingly participating in a frivolous breach, suggested that the Secretary could maintain a suit under that provision against a party in interest who participated in a transaction prohibited under section 406(a)(1). The court observed: Congress proscribed several “acts or practices” in ERISA’s substantive provisions that involve nonfiduciaries_ See Mertens, — U.S. at - & n. 4, 113 S.Ct. at 2067 & n. 4. For example, 29 U.S.C. § 1106(a)(1) prohibits certain transactions between “parties in interest,” see swpra, note 2, and ERISA plans.... 20 F.3d at 31 (footnote omitted). The court then added: The fact that [section 406] imposes the duty to refrain from prohibited transactions on fiduciaries and not on the parties in interest is irrelevant for our purposes because [section 502(a)(5) ] reaches “acts or practices” that violate ERISA and prohibited transactions violate [section 406]. Although fiduciary breaches also violate ERISA, nonfiduciaries cannot, by definition, engage in the act or practice breaching a fiduciary duty. Nonfiduciaries can, however, engage in the act or practice of transacting with an ERISA plan. Id. at 31, n. 7. Similarly," }, { "docid": "12573216", "title": "", "text": "person[s]” than fiduciaries-in-breach liable under section 502(f)(1)(B). -U.S. at-, 113 S.Ct. at 2071. We also agree with the discussion of this argument in Rowe. The Rowe court noted that Secretary was relying on a provision that provides civil penalties in order to infer a cause of action from a provision that only provides equitable relief. 20 F.3d at 34. Thus, the court explained: [I]t is difficult to imagine any case where knowing participation in a fiduciary breach by a nonfiduciary would occasion the type of remedy (restitution awards) that would trigger [section 502(l )(1)(B) ] without the nonfiduciary having engaged in a prohibited transaction under [section 406] or otherwise having obtained some ill-gotten plan assets in a manner not covered by the prohibited transaction section. We conclude, therefore, that [section 502(1)1 makes little sense as independently authorizing equitable relief against nonfiduciaries ... who allegedly participated in a fiduciary breach but did not engage in an act prohibited by the statute or otherwise obtain plan assets, when it can never be used for such relief. Id. at 34-35 (footnote omitted). . This argument is not available to the Plan trustees as they are all fiduciaries within the meaning of ERISA. As noted, ERISA imposes a number of substantive duties on plan fiduciaries, see supra note 16, and sections 502(a)(3) and (5) of ERISA, 29 U.S.C. §§ 1132(a)(3) and (5), clearly authorize the Secretary to obtain relief against fiduciaries who have breached their duties. Thus, the Secretary can sue any fiduciary who breached its duty because of its participation in a prohibited transaction (or who breached any other duty). . Nieto involved the construction of section 502(a)(3). However, as explained above, see supra page 284, we see no reason to distinguish between section 502(a)(3) and 502(a)(5) on this issue. . In light of this analysis, EMA’s and Local 98's reliance on Brock v. Citizens Bank of Clovis, 841 F.2d 344 (10th Cir.), cert. denied, 488 U.S. 829, 109 S.Ct. 82, 102 L.Ed.2d 59 (1988), is misplaced. In Citizens Bank, the Secretary brought a suit against an ERISA trustee for violating section 406(a)(1)." }, { "docid": "22110328", "title": "", "text": "a duty only on the fiduciary that causes the plan to engage in the transaction. See § 406(a)(1), 29 U. S. C. § 1106(a)(1) (\"A fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction . . .” (emphasis added)). We reject, however, the Seventh Circuit’s and Salomon’s conclusion that, absent a substantive provision of ERISA expressly imposing a duty upon a nonfiduciary party in interest, the nonfidueiary party may not be held liable under § 502(a)(3), one of ERISA’s remedial provisions. Petitioners contend, and we agree, that § 502(a)(3) itself imposes certain duties, and therefore that liability under that provision does not depend on whether ERISA’s substantive provisions impose a specific duty on the party being sued. Section 502 provides: “(a) . . . \"A civil action may be brought— “(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of [ERISA Title I] or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this title or the terms of the plan.” 29 U. S. C. § 1132(a)(3). This language, to be sure, “does not . . . authorize ‘appropriate equitable relief’ at large, but only ‘appropriate equitable relief’ for the purpose of ‘redressing any] violations or . . . enforcing] any provisions’ of ERISA or an ERISA plan.” Peacock v. Thomas, 516 U. S. 349, 353 (1996) (quoting Mertens, supra, at 253 (emphasis and alterations in original)). But § 502(a)(3) admits of no limit (aside from the “appropriate equitable relief” caveat, which we address infra) on the universe of possible defendants. Indeed, § 502(a)(3) makes no mention at all of which parties may be proper defendants — the focus, instead, is on redressing the “act or practice which violates any provision of [ERISA Title I].” 29 U. S. C. § 1132(a)(3) (emphasis added). Other provisions of ERISA, by contrast, do expressly address who may be a defendant. See, e.g.," }, { "docid": "22110327", "title": "", "text": "liable under § 502(a)(3) for participating in a §406 transaction and entered summary judgment in favor of Salomon. In doing so, the Seventh Circuit departed from the uniform position of the Courts of Appeals that § 502(a)(3) — and the similarly worded § 502(a)(5), which authorizes civil actions by the Secretary — does authorize a civil action against a non- fiduciary who participates in a transaction prohibited by § 406(a)(1). See LeBlanc v. Cahill, 153 F. 3d 134, 152-153 (CA4 1998) (§ 502(a)(3)); Landwehr v. DuPree, 72 F. 3d 726, 734 (CA9 1995) (same); Herman v. South Carolina National Bank, 140 F. 3d 1413, 1421-1422 (CA11 1998) (§ 502(a)(5)), cert. denied, 525 U. S. 1140 (1999); Reich v. Stangl, 73 F. 3d 1027, 1032 (CA10) (same), cert. denied, 519 U. S. 807 (1996); Reich v. Compton, 57 F. 3d 270, 287 (CA3 1995) (same). We granted certiorari, 528 U. S. 1068 (2000), and now reverse. H-4 We agree with the Seventh Circuit’s and Salomon’s interpretation of § 406(a). They rightly note that § 406(a) imposes a duty only on the fiduciary that causes the plan to engage in the transaction. See § 406(a)(1), 29 U. S. C. § 1106(a)(1) (\"A fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction . . .” (emphasis added)). We reject, however, the Seventh Circuit’s and Salomon’s conclusion that, absent a substantive provision of ERISA expressly imposing a duty upon a nonfiduciary party in interest, the nonfidueiary party may not be held liable under § 502(a)(3), one of ERISA’s remedial provisions. Petitioners contend, and we agree, that § 502(a)(3) itself imposes certain duties, and therefore that liability under that provision does not depend on whether ERISA’s substantive provisions impose a specific duty on the party being sued. Section 502 provides: “(a) . . . \"A civil action may be brought— “(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of [ERISA Title I] or the terms of the plan, or" }, { "docid": "17518996", "title": "", "text": "at 1572-79. Importantly for this case, Useden went further and pointed out significant differences between § 409 and § 406 and between § 502(a)(2) and § 502(a)(5). Useden first noted the absence of textual treatment of non-fiduciaries in § 409 and § 409’s express language limiting personal liability to fiduciaries. Useden then contrasted that with § 3(14)(B)’s broad definition of “parties in interest with whom plans are prohibited to enter into certain transactions under section 406(a)” and § 502(a)(5)’s authorization of suit for equitable relief for “any act or practice” violating ERISA “without restricting the type of parties who may be sued.” Id. at 1581. Useden summarized these important differences in these ERISA statutes, as follows: In the present case, appellant would have us ignore the obvious care with which ERISA’s remedial provisions are formulated, instead requiring us to supplement the statute with a substantive right against a party that Congress readily could have chosen to reach. Congress clearly contemplated the involvement of non-fiduciary parties with employee benefit plans when it drafted provisions of ERISA. For example, ERISA sections 502(a)(3) and 502(a)(5) authorize suits to enjoin or obtain other equitable relief for “any act or practice” violating either the statute or the terms of a plan, without restricting the types of parties who may be so sued. ERISA section 3(lj)(B), moreover, broadly defines the “parties in interest” unth whom plans are prohibited to enter into certain transactions under section j06(a). Significantly, however, Congress expressly limited the scope of sections 502(a)(3) and 502(a)(5) to equitable remedies, and likewise limited section 409(a) to provide a right of action only against fiduciaries. It is telling that, despite textual treatment of non-fiduciaries in various other parts of the ERISA scheme, provisions [§§ 409 and 502(a)(2)] relevant to appellant’s theory contain no textual support for a claim for monetary damages against non-fiduciaries. We cannot infer that Congress’s silence is accidental in an area where Congress has already said so much out loud. Id. at 1581-82 (citations omitted) (emphasis supplied). Construing first §§ 409 and 502(a)(2), Useden holds only that non-fiduciaries cannot be sued for breach" } ]

[ { "docid": "22119416", "title": "", "text": "the court should look to the notice of removal and may require evidence relevant to the amount in controversy at the time the case was removed. See also McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936) (stating that party invoking federal jurisdiction must allege facts essential to show jurisdiction and court may demand evidence supporting such facts). We reiterate that the burden of proving jurisdiction lies with the removing defendant. A conclusory allegation in the notice of removal that the jurisdictional amount is satisfied, without setting forth the underlying facts supporting such an assertion, is insufficient to meet the defendant’s burden. See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.1995); Allen, 63 F.3d at 1335; Gaus v. Miles, 980 F.2d 564, 567 (9th Cir.1992); see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1097 (11th Cir.1994) (concluding that removing defendant did not meet burden of proving amount in controversy where it offered “nothing more than conclusory allegations”); Gaitor v. Peninsular & Occidental S.S. Co., 287 F.2d 252, 255 (5th Cir.1961) (stating that removing defendant must make “affirmative showing ... of all the requisite factors of diversity jurisdiction”). In this case, it is not facially apparent from Williams’ complaint that the amount in controversy exceeds $75,000. We therefore look to Best Buy’s notice of removal. Although the notice of removal clearly asserts that the jurisdictional re-' quirement is satisfied, the only fact alleged in support of that assertion is that Williams refuses to stipulate that her claims do not exceed $75,000. There are several reasons why a plaintiff would not so stipulate, and a refusal to stipulate standing alone does not satisfy Best Buy’s burden of proof on the jurisdictional issue. Thus, the pleadings are inconclusive as to the amount in controversy. Where the pleadings are inadequate, we may review the record to find evidence that diversity jurisdiction exists. See Sun Printing & Publ’g Ass’n v. Edwards, 194 U.S. 377, 382, 24 S.Ct. 696, 697, 48 L.Ed. 1027 (1904); Rice v. Office of Servicemembers’ Group Life Ins., 260" } ]

[ { "docid": "22903089", "title": "", "text": "matter be remanded to state court because the district court did not have subject matter jurisdiction over his action. Mitchell maintains that the $75,000 jurisdictional amount required to establish diversity of citizenship jurisdiction under 28 U.S.C. § 1332(a) has not been demonstrated. Mitchell did not file a motion to remand on this ground in the district court. Nevertheless, we have an independent obligation to determine whether we have jurisdiction. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); Cuban Am. Bar Ass’n v. Christopher, 43 F.3d 1412, 1422 (11th Cir.1995). Accordingly, we must determine whether the district court had subject matter jurisdiction over this action. A district court has subject matter jurisdiction “where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different states.” 28 U.S.C. § 1332(a). There is no dispute that the parties are diverse. Mitchell is a citizen of Alabama because he maintains that his domicile was Alabama before he was incarcerated in Wisconsin. See Polakoff v. Henderson, 370 F.Supp. 690, 693 (N.D.Ga.1973), aff'd, 488 F.2d 977 (5th Cir.1974) (“A prisoner does not acquire a new domicile in the place of his imprisonment, but retains the domicile he had prior to incarceration.”); see also Singletary v. Cont’l Ill. Nat’l Bank & Trust Co., 9 F.3d 1236, 1238 (7th Cir.1993) (“It [citizenship] should be the state of which [the prisoner] was a citizen before he was sent to prison unless he plans to live elsewhere when he gets out, in which event it should be that state.”). None of the defendants is a citizen of Alabama. Therefore, the only question is whether the $75,000 amount-in-controversy requirement has been met. As this case was originally filed in state court and removed to federal court by the defendants, the defendants bear the burden of proving that federal subject matter jurisdiction exists. Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir.2001). As this Court has explained: In the typical diversity case, plaintiff files suit in federal court against" }, { "docid": "15554615", "title": "", "text": "claim in federal court, the sum claimed by the plaintiff controls for the purpose of assessing whether the amount-in-eontroversy requirement contained in 28 U.S.C. § 1332(a)(1) is satisfied, so long as the amount claimed appears to have been made in good faith. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 590-91, 82 L.Ed. 845 (1938). Such a case will not be dismissed for lack of diversity jurisdiction unless the defendant can demonstrate to a “legal certainty” that the plaintiff was in error regarding the claimed amount-in-controversy. Id. at 289, 58 S.Ct. at 590. The “legal certainty standard” also applies when the plaintiff originally files her complaint in state court alleging a specific amount of damages and the defendant removes the case to federal court. Gafford v. General, Elec. Co., 997 F.2d 150, 157 (6th Cir.1993). Normally, then, if a plaintiff claims in good faith an amount-in-controversy exceeding $75,000, federal jurisdiction is obtained. The standard differs, though, “where the plaintiff seeks to recover some unspecified amount that is not self-evidently greater or less than the federal amount-in-controversy requirement.” Id. at 158 (citation omitted). In such eases, “the defendant must prove, ‘more likely than not,’ that the plaintiffs claims meet the federal amount-in-controversy requirement .” Id. (granting a motion for reconsideration where the defendant satisfied its burden on removal of showing the plaintiffs claims exceeded the amount-in-controversy requirement) (citation omitted). The court applies that preponderance of the evidence standard herein, since the Plaintiffs’ claims for fraud (which would allow recovery of punitive damages) and for attorney’s fees make it impossible to say they seek to recover an amount self-evidently less than $75,000. See, Garza v. Bettcher Indus., Inc., 752 F.Supp. 753, 763 (E.D.Mich.1990) (applying the preponderance of the evidence standard in finding the defendant had shown the case met the amount-in-controversy requirement). Thus, the court must remand this action unless AOL can show by a preponderance of the evidence that the Plaintiffs’ claims meet the amount-in-controversy requirement. II. LAW AND ANALYSIS A. Amount-in-Controversy in Class Claims 1. Aggregation of Class Claims The Plaintiffs do" }, { "docid": "22582077", "title": "", "text": "party invoking federal jurisdiction bears the burden of establishing the elements of jurisdiction. Lujan v. Defenders of Wildlife, — U.S. -, -, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992); see also FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607-08, 107 L.Ed.2d 603 (1990). Generally the amount in controversy claimed by a plaintiff in good faith will be determinative on the issue of jurisdictional amount, unless it appears to a legal certainty that the claim is for less than that required by the rule. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938); Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 83 L.Ed. 1111 (1939) (“[A] general allegation [that the jurisdictional amount exists] when not traversed is sufficient”). But if the court’s jurisdiction is challenged as a factual matter by either the court or the opposing party, the party invoking the jurisdiction bears the burden of supporting its jurisdictional allegations by “competent proof.” McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979). This has been interpreted to mean a preponderance of the evidence or “proof to a reasonable probability that jurisdiction exists.” Gould v. Artisoft, Inc., 1 F.3d 544, 547 (7th Cir.1993) (in the context of federal removal jurisdiction); see also Shaw v. Dow Brands, Inc., 994 F.2d 364, 366 n. 2 (7th Cir.1993). In this case NLFC’s complaint alleged that it “suffered damages in excess of the minimum jurisdictional limits of this court.” But Devcom challenged this allegation and NLFC was therefore required to make some effort to prove that the damages sustained from its state law claims met the $50,000 threshold. NLFC did not do so, choosing instead to defend its previous assertion as sufficient. NLFC failed to add any information on the amount of damages that may have been sustained in its state claims. The district court therefore did not err in dismissing NLFC’s state law claims on" }, { "docid": "22408958", "title": "", "text": "claims against the other defendants. On August 26, 1994, Appellants filed a motion to remand for lack of federal subject matter jurisdiction. In support of their motion to remand, Davis and West filed affidavits on October 11, 1994, purporting to limit their individual damages and those of any other class members to an amount not more than $49,000. Their attorney also filed an affidavit stating that no class member would seek more than $49,000 and that he would not attempt to obtain more than $49,000 by amendment or otherwise. The district court granted Lowe’s Motion to Sever and denied Appellants’ Motion to Remand as to Lowe’s. The action was remanded to state court as to all defendants except Lowe’s. Appellants appeal the dis trict court’s order, and we have jurisdiction under 28 U.S.C. § 1292(b). II. STANDARD OF REVIEW The subject matter jurisdiction of the district court is a question of law subject to de novo review. Mutual Assur., Inc. v. United States, 56 F.3d 1353, 1355 (11th Cir.1995) (citing United States v. Perez, 956 F.2d 1098 (11th Cir.1992). III. DISCUSSION A. Burden of Proof Any civil case filed in state court may be removed by the defendant to federal court if the case could have been brought originally in federal court. 28 U.S.C. § 1441(a). A removing defendant has the burden of proving the existence of federal jurisdiction. We first decide what burden of proof the defendant must bear in demonstrating the amount-in-controversy requirement of diversity jurisdiction where the plaintiff has made an unspecified demand for damages. This Court recently examined the burden of proving the amount in controversy for diversity jurisdiction: In the typical diversity case, plaintiff files suit in federal court against a diverse party for damages exceeding $50,000. Such a case will not be dismissed unless it appears to a “legal certainty” that plaintiffs claim is actually for less than the jurisdictional amount. St. Paid’s Indemnity Corp. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). In the typical removal case, a plaintiff files suit in state court seeking" }, { "docid": "16120302", "title": "", "text": "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a). Although Ms. Kopp’s medical bills fall well below the requisite amount, she argues that in the circumstances of this case she could well recover punitive damages and damages for emotional distress that would exceed $75,000. We have held that “a complaint that alleges the jurisdictional amount in good faith will suffice to confer jurisdiction, but the complaint will be dismissed if it ‘appear[s] to a legal certainty that the claim is really for less than the jurisdictional amount.’ ” Larkin v. Brown, 41 F.3d 387, 388 (8th Cir.1994) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938)). If the defendant challenges the plaintiffs allegations of the amount in controversy, then the plaintiff must establish jurisdiction by a preponderance of the evidence. McNutt v. General Motors Ac ceptance Corp., 298 U.S. 178, 188-89, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); see also Federated Mut. Implement and Hardware Ins. Co. v. Steinheider, 268 F.2d 734, 737-38 (8th Cir.1959). When the “legal certainty” standard announced in Larkin is combined with the burden of proof established in McNutt, it appears that the relevant legal rule is that the proponent of diversity jurisdiction must prove a negative by a preponderance of the evidence in order to avoid dismissal of his or her case. A leading, treatise, for example, suggests that the proponent of federal jurisdiction must show “that it does not appear to a legal certainty that the claim for relief is for less than the statutorily prescribed jurisdictional amount.” 14B Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure § 3702 (3d ed.1998). We have no quarrel with this formulation of the applicable law, but we think that the same principle can be stated just as readily in the affirmative: The district court has subject matter jurisdiction in a diversity case when a fact finder could legally conclude, from the pleadings and proof adduced to the" }, { "docid": "12982303", "title": "", "text": "a civil case brought in state court may be removed by a defendant to federal court if it could have been brought there originally. See 28 U.S.C. § 1441(a); Motion Control Corp. v. SICK, Inc., 354 F.3d 702, 705 (8th Cir.2003). Federal courts are courts of limited jurisdiction and “the requirement that jurisdiction be established as a threshold matter springs from the nature and limits of the judicial power of the United States and is inflexible and without exception.” Godfrey v. Pulitzer Pub. Co., 161 F.3d 1137, 1141 (8th Cir.1998). “The district court has subject matter jurisdiction in a diversity case when a fact finder could legally conclude, from the pleadings and proof adduced to the court before trial, that the damages that the plaintiff suffered are greater than $75,000.” Kopp v. Kopp, 280 F.3d 883 (8th Cir.2002). A defendant who seeks to remove a case to federal court bears the burden of proving that the requirements for diversity jurisdiction have been met. See McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 66 L.Ed. 144 (1921); Yeldell v. Tutt, 913 F.2d 533, 537 (8th Cir.1990); Iowa Comprehensive Petroleum Underground Storage Tank, Fund Bd. 990C80656 v. Amoco Oil Co,, 883 F.Supp. 403, 407 (N.D.Iowa 1995); Adams v. Bank of Am., N.A., 317 F.Supp.2d 935, 940 (S.D.Iowa 2004) (citing Bor-Son Bldg., Corp. v. Heller, 572 F.2d 174, 182 n. 13 (8th Cir.1978)). When a case is filed in state court, and subsequently removed, “[tjhere is a strong presumption that the plaintiff has not’ claimed a large amount in order to confer jurisdiction on a federal court or that the parties have colluded to that end. For if such were the purpose suit would not have been instituted in the first instance in the state but in the federal court.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 290-91, 58 S.Ct. 586, 82 L.Ed. 845 (1938). Thus, where a plaintiff specifically claims less than" }, { "docid": "12178985", "title": "", "text": "all the plaintiff needs to do is allege an amount in excess of $75,000 and he will get his way, unless the defendant is able to prove “to a legal certainty” that the plaintiffs claim cannot recover the alleged amount. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Woodmen of World Life Ins. Soc’y v. Manganaro, 342 F.3d 1213, 1216-17 (10th Cir.2003). On the other hand, if the in-state plaintiff wishes to remain in state court, all it needs to do is to refrain from alleging any particular sum in its prayer for relief (assuming that is permitted, as it often is, under state rules of civil procedure), and, according to this and most other courts, the defendant is required to prove jurisdictional facts by a “preponderance of the evidence” such that the amount in controversy may exceed $75,000. Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290 (10th Cir.2001) (citing cases). Thus, when the proponent of federal jurisdiction is the party that does not need it, mere allegations suffice; but when the proponent of federal jurisdiction is the party in whose interest diversity jurisdiction was created, actual proof of jurisdictional facts is required, at a stage in the litigation when little actual evidence is yet available. This set of rules bears no evident logical relation either to the purpose of diversity jurisdiction, or to the principle that those who seek to invoke federal jurisdiction must establish its prerequisites. See generally Alice M. Noble-Allgire, Removal of Diversity Actions When the Amount in Controversy Cannot be Determined from the Face of Plaintiffs Complaint: The Need for Judicial and Statutory Reform to Preserve Defendant’s Equal Access to Federal Courts, 62 Mo. L.Rev. 681 (1997). The requirement that a defendant must prove facts in support of the amount in controversy by a “preponderance of the evidence,” which derives from McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936), raises a further puzzle: in most removal cases, there is little “evidence” one way" }, { "docid": "22903091", "title": "", "text": "a diverse party for damages exceeding [$75,000], Such a ease will not be dismissed unless it appears to a “legal certainty” that plaintiffs claim is actually for less than the jurisdictional amount. St. Paul Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). In the typical removal case, a plaintiff files suit in state court seeking over [$75,000]. The defendant can remove to federal court if he can show, by a preponderance of the evidence, facts supporting jurisdiction. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). These standards give great weight to plaintiffs assessment of the value of plaintiffs case. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1094 (11th Cir.1994). The Ninth Circuit has described the general “mechanical” rule courts apply when a plaintiffs complaint specifies an amount of damages: At common law, a statement of the amount claimed was required [to appear in every complaint], and was an upper limit on recovery. In a state following the common law rule, there is a mechanical test of whether the amount in controversy requirement is met when a case is removed. The district court simply reads the ad damnum clause of the complaint to determine whether the “matter in controversy exceeds the sum or value of [$75,000] exclusive of interest and costs.” 28 U.S.C. § 1332(a). If the claim was apparently made in good faith, then the sum claimed by the plaintiff controls for removal purposes unless it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed. Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 375 (9th Cir.1997) (quotations, citation, and footnote omitted). Thus, when the complaint seeks damages exceeding $75,000, a removing defendant may rely on the plaintiffs valuation of the case to establish the amount in controversy unless it appears to a legal certainty that the plaintiff cannot recover the amount claimed. Id. Mitchell’s complaint prays for damages in an amount exceeding $75,000. His complaint requests a total of $10" }, { "docid": "6341252", "title": "", "text": "an Area Production Manager for defendant. He states that closing the quarry near plaintiffs’ homes would deprive defendant of at least $4,862,-000 per year in pretax earnings, that each lost hour of daily production would amount to an annual economic impact of more than $979,000, and that any restriction which measurably reduced defendant’s output would have an annual economic impact on defendant in excess of $75,000. Plaintiffs reply that the Court should determine the amount in controversy only from plaintiffs’ perspective and not consider the economic impact on defendant. Discussion The law used to determine jurisdictional amount in “diversity” cases is quite clear, up to a point. Federal courts “have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different states.” 28 U.S.C. § 1332(a). In addition, any matter which may have been originally brought in federal court, but is filed in a state court, may be removed by the defendant to federal district court. 28 U.S.C. § 1441. In either a case originally filed in, or one removed to, federal court, [t]he party seeking to invoke the jurisdiction of the federal courts has the burden of proving its existence by showing that it does not appear to a legal certainty that its claim is for less than the jurisdictional amount. 14A Charles Alan Wright, et al., Federal Practice and Procedure § 3702, at 19 (2d ed.1985). Accordingly, in a removal case, the defendant, rather than the plaintiff, has the burden of proving that the jurisdictional requirements for removal are met. Griffin v. Holmes, 843 F.Supp. 81 (E.D.N.C.1993) (cit ing Kirchner Gafford v. General Electric Co., 997 F.2d 150, 155 (6th Cir.1993)). For a removal, this means defendant must prove to a “legal certainty” that plaintiffs’ claim exceeds $75,000. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994). However, a plaintiffs right to select the forum for its claim" }, { "docid": "6341253", "title": "", "text": "U.S.C. § 1441. In either a case originally filed in, or one removed to, federal court, [t]he party seeking to invoke the jurisdiction of the federal courts has the burden of proving its existence by showing that it does not appear to a legal certainty that its claim is for less than the jurisdictional amount. 14A Charles Alan Wright, et al., Federal Practice and Procedure § 3702, at 19 (2d ed.1985). Accordingly, in a removal case, the defendant, rather than the plaintiff, has the burden of proving that the jurisdictional requirements for removal are met. Griffin v. Holmes, 843 F.Supp. 81 (E.D.N.C.1993) (cit ing Kirchner Gafford v. General Electric Co., 997 F.2d 150, 155 (6th Cir.1993)). For a removal, this means defendant must prove to a “legal certainty” that plaintiffs’ claim exceeds $75,000. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994). However, a plaintiffs right to select the forum for its claim is stronger that a defendant’s right to remove. Therefore, any doubts about removal must be resolved in favor of remand. Griffin, 843 F.Supp. at 84; Burns, 31 F.3d at 1095. In this case, the jurisdictional dispute only involves the amount in controversy, and not diversity of citizenship. The amount in controversy is normally determined from the face of the pleadings. St. Paul, 303 U.S. at 289-90, 293, 58 S.Ct. 586, 82 L.Ed. 845. In this case, no specific amount is alleged in the complaint. Therefore, it will not aid in determining whether the action meets the jurisdictional amount in controversy. This is because, under North Carolina pleading rules, in negligence actions, claims in excess of $10,000 may only so state. That is how plaintiffs plead their demand for judgment. When federal jurisdiction is not plain from the face of a plaintiff’s complaint, the defendant must offer evidence in support of its claim that the controversy satisfies the federal jurisdictional amount. The court makes its determination on the basis of the existing record. 14A Wright, supra," }, { "docid": "22739761", "title": "", "text": "a diverse party for damages exceeding $50,000. Such a case will not be dismissed unless it appears to a “legal certainty” that plaintiffs claim is actually for less than the jurisdictional amount. St. Paul’s Indemnity Corp. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). In the typical removal ease, a plaintiff files suit in state court seeking over $50,000. The defendant can remove to federal court if he can show, by a preponderance of the evidence, facts supporting jurisdiction. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). These standards give great weight to plaintiffs assessment of the value of plaintiffs case. Neither of these general rules fits our atypical case. Here, plaintiff filed suit in state court specifically requesting $45,000, five thousand dollars less than the jurisdictional amount. Defendant says plaintiffs prayer is illusory, that she actually intends to recover more than $50,000; so, the ease should remain in federal court. As support, defendant stresses that Alabama Rule of Civil Procedure 54(c) allows a fact finder to give a plaintiff any relief she is entitled to, even if she asked for less. And, defendant points to plaintiffs refusal to sign a stipulation precluding her from ever amending her claim to seek damages over $50,000. Defendant ar gues that, as the party seeking jurisdiction, it should receive the benefit of the St. Paul’s “legal certainty” test. That is, the case should remain in federal court unless it appears to a legal certainty that the claim is for less than $50,000. We disagree. Federal courts are courts of limited jurisdiction. While a defendant does have a right, given by statute, to remove in certain situations, plaintiff is still the master of his own claim. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 391 & n. 7, 107 S.Ct. 2425, 2429 & n. 7, 96 L.Ed.2d 318 (1987); Great Northern R. Co. v. Alexander, 246 U.S. 276, 282, 38 S.Ct. 237, 239, 62 L.Ed. 713 (1918); Gafford v. General Electric, 997 F.2d 150 (6th" }, { "docid": "23261631", "title": "", "text": "the defendant must prove to a legal certainty that the plaintiffs damages are not less than $75,000, DiTullio v. Universal Undenoriters Ins. Co., 2003 WL 21973324, at *3-*4 (E.D.Pa.2003); and (3) remanding a ease “because ambiguity exists and doubt remains regarding the sufficiency of the amount in controversy.” Stuessy v. Microsoft Corp., 837 F.Supp. 690, 692 (E.D.Pa.1993). Many of the variations are purely se-mantical and we have found no case where the result would have been different had one of the variations described been used. However, we think it would be helpful if consistent language were used by the District Courts within this Circuit. The Supreme Court has discussed the nature of a defendant’s burden of proof in a removal case. In St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938) the plaintiff, in seeking a remand to the state court, amended the complaint after removal to allege damages less than the federal jurisdictional amount. The Court stated that the rule for determining whether the case involves the requisite amount as whether from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount. Id. at 289, 58 S.Ct. 586. If not, the suit must be dismissed. Some courts have found inconsistencies between Red Cab and McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). In the latter case, the Supreme Court held that the party alleging jurisdiction [must] justify his allegations by a preponderance of the evidence. McNutt, 298 U.S. at 189, 56 S.Ct. 780. In that case, although a challenge to the amount in controversy had been raised in the pleadings, no evidence or findings in the trial court addressed that issue. In that respect, Red Cab differs because these factual findings had been made. Rather than reading articulations of the standard as variations, we believe that" }, { "docid": "22341080", "title": "", "text": "Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). Even this understates the law because, as Justice Holmes said, “the party who brings a suit is master to decide what law he will rely upon.” Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913). It follows that a plaintiff may evade federal court by simply asking for less than the jurisdictional amount, St. Paul, 303 U.S. at 294, 58 S.Ct. at 592, so long as the plaintiff, should she prevail, isn’t legally certain to recover more. In re Shell Oil, 966 F.2d 1130, 1131 (7th Cir.1992). Indeed, the burden rests on the defendant in a removal action to prove that the amount in controversy is sufficient. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921). Defendants seeking removal may meet that burden by a preponderance of the evidence, McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936), which we take to mean proof to a reasonable probability that jurisdiction exists. Permitting a plaintiff to dictate the forum is more difficult, however, when the plaintiffs complaint is necessarily ambiguous because of state law. A most absurd (and unsatisfactory) result would be to deny jurisdiction in each tort case from Illinois because the complaint filed in state court is unclear about the amount in controversy. Judge Shadur’s answer is that, before the defendant seeks to remove a case, she should request the specific amount in controversy from the plaintiff by interrogatory. Illinois allows such interrogatories despite the generalized cap on damages claims in complaints. Thus before a case is ever removed it will be clear how much the plaintiff is requesting and the defendant may proceed accordingly. Judge Shadur’s suggestion is eminently sensible and we recommend it to removal-minded defendants in Illinois. We stop short, however, of declaring that this is the only means by which a defendant can establish to a" }, { "docid": "8392611", "title": "", "text": "jurisdictional requirements. A party who invokes the jurisdiction of the federal courts has the burden of demonstrating the court’s jurisdiction. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). In diversity cases, we generally accept a party’s good faith allegation of the amount in controversy, but where a defendant or the court challenges the plaintiffs allegations regarding the amount in question, the plaintiff who seeks the assistance of the federal courts must produce sufficient evidence to justify its claims. Burns v. Massachusetts Mutual Life Insurance Co., 820 F.2d 246, 248 (8th Cir.1987). The test for determining the amount in controversy in diversity cases was established by the Supreme Court in St. Paul Mercury Indemnity Co. v. Red Cab. Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938). The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction. Nor does the fact that the complaint discloses the existence of a valid defense to the claim. But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed. Id. at 288-89, 58 S.Ct. at 590 (emphasis added and footnotes omitted). Red Cab gave rise to two jurisdictional principles. First, dismissal is appropriate only if the federal court is certain that the jurisdictional amount cannot be met; the reasonable probability that the amount exceeds $50,000" }, { "docid": "22191901", "title": "", "text": "Court cases: St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938), and McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). In Red Cab, the plaintiff filed suit in state court and, in response to defendant’s removal of the case, subsequently reduced its claim below the requisite amount. 303 U.S. at 285, 58 S.Ct. 586 (holding that “events occurring subsequent to removal which reduce the amount recoverable, whether beyond the plaintiffs control or the result of his volition, do not oust the district court’s jurisdiction once it has attached”). The Supreme Court articulated what has become known as the “legal certainty test,” observing that when a case is brought in federal court, “the sum claimed by the plaintiff controls if the claim is apparently made in good faith.” Id. at 288, 58 S.Ct. 586. The case will be dismissed only if, “from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount.” Id. at 289, 58 S.Ct. 586. In McNutt, the plaintiff brought suit in federal court and defendant contested the assertion in the complaint that the requisite matter in controversy was involved. McNutt, 298 U.S. at 179-180, 56 S.Ct. 780. The Supreme Court held: “[T]he court may ... insist that the jurisdictional facts be established or the case be dismissed, and for that purpose the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence.” Id. at 189, 56 S.Ct. 780. This Court, in Samuelr-Bassett, disentangled the “legal certainty” and “preponderance of the evidence” approaches of McNutt and Red Cab by distinguishing them on the grounds of whether the jurisdictional dispute surrounded factual matters: “In [McNutt], although a challenge to the amount in controversy had been raised in the pleadings, no evidence or findings in the trial court addressed the issue." }, { "docid": "22903090", "title": "", "text": "incarcerated in Wisconsin. See Polakoff v. Henderson, 370 F.Supp. 690, 693 (N.D.Ga.1973), aff'd, 488 F.2d 977 (5th Cir.1974) (“A prisoner does not acquire a new domicile in the place of his imprisonment, but retains the domicile he had prior to incarceration.”); see also Singletary v. Cont’l Ill. Nat’l Bank & Trust Co., 9 F.3d 1236, 1238 (7th Cir.1993) (“It [citizenship] should be the state of which [the prisoner] was a citizen before he was sent to prison unless he plans to live elsewhere when he gets out, in which event it should be that state.”). None of the defendants is a citizen of Alabama. Therefore, the only question is whether the $75,000 amount-in-controversy requirement has been met. As this case was originally filed in state court and removed to federal court by the defendants, the defendants bear the burden of proving that federal subject matter jurisdiction exists. Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir.2001). As this Court has explained: In the typical diversity case, plaintiff files suit in federal court against a diverse party for damages exceeding [$75,000], Such a ease will not be dismissed unless it appears to a “legal certainty” that plaintiffs claim is actually for less than the jurisdictional amount. St. Paul Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). In the typical removal case, a plaintiff files suit in state court seeking over [$75,000]. The defendant can remove to federal court if he can show, by a preponderance of the evidence, facts supporting jurisdiction. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). These standards give great weight to plaintiffs assessment of the value of plaintiffs case. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1094 (11th Cir.1994). The Ninth Circuit has described the general “mechanical” rule courts apply when a plaintiffs complaint specifies an amount of damages: At common law, a statement of the amount claimed was required [to appear in every complaint], and was an upper limit on recovery. In" }, { "docid": "22408959", "title": "", "text": "F.2d 1098 (11th Cir.1992). III. DISCUSSION A. Burden of Proof Any civil case filed in state court may be removed by the defendant to federal court if the case could have been brought originally in federal court. 28 U.S.C. § 1441(a). A removing defendant has the burden of proving the existence of federal jurisdiction. We first decide what burden of proof the defendant must bear in demonstrating the amount-in-controversy requirement of diversity jurisdiction where the plaintiff has made an unspecified demand for damages. This Court recently examined the burden of proving the amount in controversy for diversity jurisdiction: In the typical diversity case, plaintiff files suit in federal court against a diverse party for damages exceeding $50,000. Such a case will not be dismissed unless it appears to a “legal certainty” that plaintiffs claim is actually for less than the jurisdictional amount. St. Paid’s Indemnity Corp. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). In the typical removal case, a plaintiff files suit in state court seeking over $50,000. The defendant can remove to federal court if he can show, by a preponderance of the evidence, facts supporting jurisdiction. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). Burns v. Windsor Insurance Co., 31 F.3d 1092, 1094 (11th Cir.1994). In Bums, we held where a plaintiff has specifically claimed less than the jurisdictional amount in state court, a defendant, to establish removal jurisdiction, must prove to a “legal certainty” that the plaintiff would not recover less than $50,-000 if she prevailed. Id. at 1095. The rationale is that although a defendant has a right to remove in certain cases, a plaintiff is still master of her own claim. Id. Noting an attorney’s twin duties to investigate his client’s case and be candid with the court, we reasoned that a pleading containing a specific demand of damages and signed by a lawyer was due deference and a presumption of truth. Id. We concluded the defendant’s burden was a “heavy one” and the legal" }, { "docid": "18304449", "title": "", "text": "Inc. as a party would relate back to the original filing of the Complaint. Furr’s, Inc. argues that it cannot now be joined as a party because it did not receive notice of this action until after the statutory time period had passed. However, under 42 U.S.C. § 2000e-5(f)(l) Plaintiff was required to bring suit, not provide notice to Defendants, within ninety days of the right-to-sue letter. Because Plaintiffs amendment relates back to the commencement of the action, Furr’s, Inc. can be made a party without violating the ninety-day requirement. C. Amount in Controversy. Plaintiff claims subject matter jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332. Alternatively, she bases jurisdiction on a federal question, with pendent jurisdiction over her state claims. Defendants argue that Plaintiff failed to allege permissible damages in an amount which would satisfy the $10,000 amount in controversy requirement of 28 U.S.C. § 1332. The Court disagrees. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 854 (1938), set the standard for a jurisdictional inquiry into the amount in controversy. It must appear “to a legal certainty” that the claim is really for less than the requisite amount to justify dismissal. Id. at 288-89. See also Gibson v. Jeffers, 478 F.2d 216, 221 (10th Cir.1973). Generally, “the sum claimed by the plaintiff controls if this claim is apparently made in good faith.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. at 288, 58 S.Ct. at 590. However, once the amount has been challenged, the party asserting jurisdiction has the burden of showing that it does not appear to a legal certainty that the claim is for less than $10,-000. Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 729, 83 L.Ed. 1111 (1939); Gibson v. Jeffers, 478 F.2d at 221. Where allegations of jurisdictional facts are challenged, plaintiff must support them by competent proof, McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936), including amendment or affidavits, if necessary. Diefenthal v. C.A.B., 681" }, { "docid": "15554614", "title": "", "text": "it was originally filed. I. STANDARD FOR REMAND Initially, the court must determine the proper standard for determining whether it has jurisdiction over this case, and upon which party lies the burden of proving jurisdiction. The relevant jurisdictional statute confers upon this court the power to adjudicate “civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different states.” 28 U.S.C. § 1332(a)(1). Generally, the party seeking to litigate in federal court bears the burden of establishing the existence of federal subject matter jurisdiction. McNutt v. Gen’l Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936) (declaring that “the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence”). In this case, then, it is AOL that bears the burden of proving jurisdiction, because the Plaintiffs would prefer to have stayed in state court, where they first filed their case. When a plaintiff originally files her claim in federal court, the sum claimed by the plaintiff controls for the purpose of assessing whether the amount-in-eontroversy requirement contained in 28 U.S.C. § 1332(a)(1) is satisfied, so long as the amount claimed appears to have been made in good faith. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 590-91, 82 L.Ed. 845 (1938). Such a case will not be dismissed for lack of diversity jurisdiction unless the defendant can demonstrate to a “legal certainty” that the plaintiff was in error regarding the claimed amount-in-controversy. Id. at 289, 58 S.Ct. at 590. The “legal certainty standard” also applies when the plaintiff originally files her complaint in state court alleging a specific amount of damages and the defendant removes the case to federal court. Gafford v. General, Elec. Co., 997 F.2d 150, 157 (6th Cir.1993). Normally, then, if a plaintiff claims in good faith an amount-in-controversy exceeding $75,000, federal jurisdiction is obtained. The standard differs, though, “where the plaintiff seeks to recover some unspecified amount that is" }, { "docid": "22739760", "title": "", "text": "Windsor filed for removal on the basis of diversity under 28 U.S.C. §§ 1332 & 1441. Burns sought a remand, and Windsor opposed it. Windsor argued the amount in controversy actually exceeded $50,000 and that Burns’ request to cap her damages was illusory. The self-imposed limit, Windsor said, was designed only to defeat diversity jurisdiction. Then, the district court entered an order requiring Burns, to obtain a remand to state court, to file a statement that she would, in the future, attempt to collect no more than $50,000. She responded that her present claim was for $45,000 (for which she offered to settle immediately), but that the amount may change “upon a worsening health condition of the plaintiff, or perhaps greater punitive damages would be justifiable if facts discovered during the litigation showed a more sinister or oppressive character.” After she refused a second opportunity to agree never to seek more than $49,999, the court denied Burns’ motion to remand. Burns appeals. DISCUSSION In the typical diversity case, plaintiff files suit in federal court against a diverse party for damages exceeding $50,000. Such a case will not be dismissed unless it appears to a “legal certainty” that plaintiffs claim is actually for less than the jurisdictional amount. St. Paul’s Indemnity Corp. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). In the typical removal ease, a plaintiff files suit in state court seeking over $50,000. The defendant can remove to federal court if he can show, by a preponderance of the evidence, facts supporting jurisdiction. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). These standards give great weight to plaintiffs assessment of the value of plaintiffs case. Neither of these general rules fits our atypical case. Here, plaintiff filed suit in state court specifically requesting $45,000, five thousand dollars less than the jurisdictional amount. Defendant says plaintiffs prayer is illusory, that she actually intends to recover more than $50,000; so, the ease should remain in federal court. As support, defendant stresses that" } ]

[ { "docid": "17072154", "title": "", "text": "§ 1132(c)(3). The district court dismissed Simon’s ERISA claims on the grounds of res judi-cata and collateral estoppel, noting that Simon had brought a similar claim against the ALLCARE Plan in an earlier lawsuit filed in the Central District of California. In that case, Simon sued 1600 defendants, including the ALLCARE Plan, for recovery of ERISA claims assigned to him by Humanistic and other health care providers. The district court dismissed Simon’s suit on the ground that Simon — as a third party claim assignee who was not a health care provider — did not have standing to sue under ERISA, and the Ninth Circuit affirmed. See Simon v. Value Behavioral Health, Inc., 955 F.Supp. 93 (C.D.Cal.1997), aff'd, 208 F.3d 1073 (9th Cir.2000). The district court in the present case noted that Simon was raising the same issues against the same defendant and his claims therefore were barred by res judicata and collateral estoppel. The district court allowed Simon to amend his complaint in order to allege violations of state and common law such as breach of contract, prom issory estoppel, fraud, conspiracy, and deceptive trade practices. The district court then dismissed those claims as untimely or preempted by ERISA. On appeal Simon devotes much of his brief to arguing that the decisions of the Central District of California and the Ninth Circuit that he lacked standing to sue under ERISA were incorrect. Simon’s argument misses the point. The doctrine of res judicata bars relitigation of a claim for relief decided on the merits in a previous suit involving the same parties or their privies. See Bethesda Lutheran Homes & Serv., Inc. v. Born, 238 F.3d 853, 857 (7th Cir.2001); Brzostowski v. Laidlaw Waste Sys., Inc., 49 F.3d 337, 338 (7th Cir.1995). Simon does not dispute that this suit raises the same ERISA claim against the ALL-CARE Plan as his suit filed in the Central District of California and therefore offers nothing to dispel us of the conclusion that res judicata bars his ERISA claim. Furthermore, res judicata also bars Simon’s state and common law claims because Simon could have" } ]

[ { "docid": "7879348", "title": "", "text": "12(b)(6) motion. When the motion was called on September 25, the defendant’s lawyer duly relayed the request for a briefing schedule. The judge responded by ordering the complaint dismissed, though without prejudice. He gave no reason for the dismissal, or for making it without prejudice, saying only that the plaintiff had “until October 17, 2001 to file a motion for reconsideration with case authority” and that failure to do so would result in the dismissal’s becoming a dismissal with prejudice. On October 17 the plaintiffs lawyer filed a motion for reconsideration in which he stated that discrimination in a real estate transaction violates the Illinois Human Rights Act. 775 ILCS 5/3-102. But he failed to file the required notice of presentment, though he had been warned by the defendant’s lawyer that failure to file such a notice was a ground under Rule 78.2 for “striking” (actually for denying, but that is what he meant) the motion. The defendant moved to “strike” the motion for reconsideration on that ground, and the district court granted the motion. The order granting the motion to strike was docketed on November 29 and the notice of appeal was filed on December 28. The defendant argues that the appeal, insofar as it seeks to challenge the dismissal of the suit back in September rather than just the denial of the motion for reconsideration, is untimely because the notice of appeal was filed more than 30 days after the dismissal was docketed (which was on September 26). But an order dismissing a suit without prejudice is not a final, appealable order unless it is apparent that the district court has finished with the case. Strong v. David, 297 F.3d 646, 648 (7th Cir.2002); Davis v. Ruby Foods, Inc., 269 F.3d 818, 819 (7th Cir.2001); Hunt v. Hopkins, 266 F.3d 934, 936 (8th Cir.2001); see also Smart v. International Brotherhood of Electrical Workers, Local 702, 315 F.3d 721, 725-26 (7th Cir.2002). Here on the contrary it was apparent that the judge had dismissed the suit without prejudice because he thought the plaintiff might persuade him to rescind the" }, { "docid": "21734037", "title": "", "text": "complaint sought to affirm and enforce the arbitrator’s final award and to enter judgment against Hunt in accordance therewith. On April 8, 1999, Judge Shadur entered judgment enforcing the final award. On April 26, 1999, Central States filed a Rule 59(e) motion to amend judgment, seeking to amend the judgment to provide for monetary relief because, as noted above, the arbitration’s award did not provide for withdrawal payments. Judge Shadur denied the motion, noting that his power was limited to determining whether the arbitrator’s decision was correct. At no time, however, did Judge Shadur rule on the ultimate issue of whether Hunt was liable for the withdrawal under the MPPAA or on what would happen if Hunt refused to make payments under the revised demand. D. Our Prior Decision On May 6, 1999, Hunt appealed Judge Shadur’s judgment enforcing the final award. On June 30, 1999, Central States moved to consolidate its appeal of Judge Nordberg’s decision with its appeal of Judge Shadur’s judgment and denial of Central States’ motion to amend judgment, and we issued an ordered consolidating the appeals. On appeal, this court affirmed both lower courts. See Cent. States, Southeast and Southwest Areas Pension Fund v. Hunt Truck Lines, Inc., 204 F.3d 736, 743 (7th Cir.2000) (“Hunt I ”). With regard to the appeal of Judge Nordberg’s decision, we rejected Central States’ effort to argue that “on or about July 20” could mean “as early as May 3” and held that Central States was bound by its admission before the district court and thus the date of withdrawal was not legitimately in dispute. See id. at 742. We further concluded that under the MPPAA, a pension fund was not permitted to issue a notice and'demand for withdrawal liability until after the employer incurred such liability. See id. Because Wintz had not withdrawn at the time Central States issued the original demand to Hunt, we held that Central States’ failure to comply with this procedural requirement meant that Central States could not collect interim payments based on the May 31,1996 notice. See id. In affirming Judge Shadur’s rulings," }, { "docid": "21734045", "title": "", "text": "our express language in Hunt I. See D & K Prop., 112 F.3d at 260; Energy Co-op., 814 F.2d at 1233. II. Conclusion For the foregoing reasons, we Affirm the judgment of the district court. Subsequently, Hunt sought attorney's fees, which were awarded by the district court. However, on appeal, we held that the district court had abused its discretion in awarding attorney's fees because there was no dispute that Hunt would ultimately face withdrawal liability. See Cent. States, Southeast and Southwest Areas Pension Fund v. Hunt Truck Lines, Inc., 272 F.3d 1000, 1006 (7th Cir.2001) (‘‘Hunt II\"). In so holding, Judge Diane Wood, writing for the court, again instructed Hunt to pay for the withdrawal liability and questioned Hunt's failure to do so. See id. at 1003. MANION, Circuit Judge, concurring. The only reason res judicata does not apply here is because of this court’s (albeit a different panel) express language in Hunt I declaring that the decision would not preclude future recovery. When arbitrator Jaffe eventually issued his final award that did not include a requirement that Hunt make the withdrawal payments, Central States could and should have brought a suit to modify the award rather than to simply enforce it. Section 1401(b) of ERISA permits both options. Under other circumstances, Central States’ failure to sue to modify would preclude its current suit to collect the withdrawal liability under the doctrine of res judicata. Hunt I’s declaration that Central States is not precluded created the law for this case that would not be applicable otherwise." }, { "docid": "62718", "title": "", "text": "at 5; the court concluded that “the argument that Freeman ... requires giving Tricontinental yet another opportunity to replead not only comes too late, it is wrong,” id. at 6. The district court therefore entered final judgment as to PwC on October 14, 2005. Tricontinental timely appealed. II DISCUSSION A. Standard of Review We review a district court’s dismissal, whether based on Federal Rule of Civil Procedure 12(b)(6) or Rule 9(b), de novo. See Arazie, 2 F.3d at 1464-65. In reviewing dismissals, “[w]e accept all the factual allegations in the complaint and draw all reasonable inferences from these facts in favor of the plaintiff.” Id. at 1465 (citation omitted). In doing so, however, “[w]e are not required ... to ignore any facts alleged in the complaint that undermine the plaintiffs claim.” Id. (citation omitted). Although we employ the same standard of review for dismissal under Rule 9(b), [t]he federal rules impose more stringent pleading requirements upon complaints charging fraud than on complaints charging other types of misconduct. Fed.R.Civ.P. 9(b). We outlined these requirements in DiLeo v. Ernst & Young, 901 F.2d 624, 626 (7th Cir.), cert. denied, 498 U.S. 941, 111 S.Ct. 347, 112 L.Ed.2d 312 (1990). In DiLeo, we held that plaintiffs must plead the circumstances constituting fraud in detail— the “who, what, when, where, and how....” Id. at 626. Arazie, 2 F.3d at 1465 (parallel citations omitted). This heightened pleading requirement does not extend to “states of mind” which “may be pleaded generally” under Rule 9(b), see Robin v. Arthur Young & Co., 915 F.2d 1120, 1127 (7th Cir.1990); nevertheless, the complaint “ ‘must still afford a basis for believing that plaintiffs could prove scienter,’ ” id. (quoting DiLeo v. Ernst & Young, 901 F.2d 624, 629 (7th Cir.1990)). Finally, we note that we may affirm the judgment of the district court on any ground supported by the record. See Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964, 974 (7th Cir.2001). B. Negligent Misrepresentation Tricontinental first maintains that the district court erred in dismissing its negligent misrepresentation claim on the ground that it “lacked privity with PwC" }, { "docid": "1993183", "title": "", "text": "three years after the security was bona fide offered to the public .... ” 15 U.S.C. § 77m. The original complaint was filed on February 20, 2001. The district court found that this filing was more than three years after the membership interests were “bona fide offered to the public,” and thus the claim was barred. I. We review de novo the district court’s dismissal under Rule 12(b)(6), accepting as true the material facts alleged in the complaint and drawing all reasonable inferences in plaintiffs’ favor. Van Buskirk v. The New York Times Co., 325 F.3d 87, 89 (2d Cir.2003) A. § 12(a)(2) claim 1. Waiver As a preliminary issue, we must address Smart World’s argument that Stolz has waived its § 12(a)(2) claims by not repleading them in the Second Amended Complaint. But this is not our rule. We will not require a party, in an amended complaint, to replead a dismissed claim in order to preserve the right to appeal the dismissal when the court has not granted leave to amend. Such a formalistic requirement serves no valid purpose. In this respect, we join most other circuits. See Young v. City of Mt. Ranier, 238 F.3d 567, 572 (4th Cir.2001) (collecting cases); see also 3 Moore’s Federal Practice, 3d ed. § 15.17[4] (“In this situation [where a claim has been dismissed without leave to amend] it would be pointless to require the plaintiff to replead the dismissed claim and plaintiffs counsel would be forced to bear the risk of sanctions to preserve the client’s right to appeal.”). Stolz’s § 12(a)(2) claim is properly before us on appeal. 2. Allegations of Historical or Present Fact A defendant may not be liable under § 12(a)(2) for misrepresentations in a prospectus if the alleged misrepresentations were sufficiently balanced by cautionary language within the same prospectus such that no reasonable investor would be misled about the nature and risk of the offered security. See Halperin v. EBanker Usa.com, Inc., 295 F.3d 352, 357 (2d Cir.2002) (“Certain alleged misrepresentations in a stock offering are immaterial as a matter of law because it cannot" }, { "docid": "22365459", "title": "", "text": "Inc., 209 F.3d 1064, 1067 (8th Cir.2000); Badger Pharm., Inc. v. Colgate-Palmolive Co., 1 F.3d 621, 625 (7th Cir.1993); Davis, 929 F.2d at 1517; Varnes v. Local 91, Glass Bottle Blowers Ass’n of U.S. & Canada, 674 F.2d 1365, 1370 (11th Cir.1982); Wilson v. First Houston Inv. Corp., 566 F.2d 1235, 1238 (5th Cir.1978), vacated on other grounds, 444 U.S. 959, 100 S.Ct. 442, 62 L.Ed.2d 371 (1979); 3 Moore’s Federal Practice ¶ 15.08(7) (1974). The Fourth Circuit has described this rule as “an exception to the general rule of waiver.” Young, 238 F.3d at 573. We find the reasoning in some of those cases and in some of our own criticizing our rule to be persuasive. First, our current rule is unfair to litigants. For the plaintiff whose complaint has been dismissed, the rule is not merely overly “mechanical,” see 6 Wright & Miller, supra, § 1476; it creates a “Hobson’s choice[,j ... a patently coercive predicament” between amending the complaint— thereby forgoing the chance to appeal the dismissal of some claims — and appealing the dismissal of the claims in the original complaint — thereby forgoing the chance to add or replead claims that the plaintiff would otherwise be allowed to add. In re Atlas Van Lines, 209 F.3d at 1067; see Davis, 929 F.2d at 1518 (“[A] rule requiring plaintiffs who file amended complaints to replead claims previously dismissed on their merits in order to preserve those claims merely sets a trap for unsuspecting plaintiffs with no concomitant benefit to the opposing party.”) (footnote omitted). In practice, however, the choice for counsel is between failing to preserve issues for appeal and risking sanctions by realleging dismissed claims. See Parrino, 146 F.3d at 704. The risk of sanctions is not merely hypothetical. See, e.g., Destfino v. Reiswig, 630 F.3d 952, 959 (9th Cir.2011) (affirming district court’s inherent power to control its docket by dismissing entire complaint for failure to follow instructions given with leave to amend); Johnson ex rel. Wilson v. Dowd, 345 Fed.Appx. 26, 30 (5th Cir.2009) (approving Rule 11 sanctions for counsel who realleged claims against" }, { "docid": "22252823", "title": "", "text": "inflammation and deterioration of his joints. Because Arnett sought leave to proceed in forma pauperis, the district court screened his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), and in so doing, dismissed all the defendants, except Dr. Webster, on the basis that Arnett failed to state a claim upon which relief could be granted. (Shortly after screening, Ar-nett’s case was transferred from Judge Richard L. Young to Judge William T. Lawrence.) Dr. Webster then filed a summary judgment motion and the district court granted that motion. The district court entered judgment, directing that plaintiff take nothing by his complaint. Arnett appeals both rulings and we affirm in part and reverse in part. We affirm dismissal of the non-medical defendants on the pleadings, but find that Arnett properly stated a claim against the medical defendants. We, however, affirm the district court’s grant of summary judgment in favor of Dr. Webster because Arnett failed to meet his burden to submit evidence upon which a reasonable jury could find that Dr. Webster acted with deliberate indifference. I. Facts Arnett brought this suit against the following Terre Haute prison employees for violation of his Eighth Amendment rights: Warden Richard Veach, Health Services Administrator Julia Beighley, Case Manager David Parker, Staff Physician W. Eric Wilson, M.D., Physician’s Assistant Yves A. Paul-Blanc, and Clinical Director Thomas A. Webster, M.D. (Arnett also sued the Federal Bureau of Prisons, but recognizing that dismissal of the BOP was proper, he has not appealed that ruling.) Because we are reviewing a dismissal at both the pleading and summary judgment stage, we begin by setting forth the allegations and facts in Arnett’s complaint and documents attached thereto. See Reger Dev., LLC v. Nat’l City Bank, 592 F.3d 759, 764 (7th Cir.2010) (On a motion to dismiss “[w]e consider documents attached to the. complaint as part of the complaint itself.”) In 2001, Arnett was diagnosed with RA by his treating physician, Steven R. Bergquist, M.D. RA involves autoimmune reactions and is a progressive disease that causes pain and inflammation in the joints. After other medications proved unsuccessful in controlling his condition, Dr." }, { "docid": "894573", "title": "", "text": "only conclusory allegations as against those two defendants. We agree with Arthur Young and Raymond that the complaint includes only conclusory allegations of fraudulent concealment as against Arthur Young and Raymond. Rule 9(b), Fed.R.Civ.P., requires that the elements of fraud be pleaded with particularity. Accordingly, we affirm the judgment of the district court to the extent that it dismissed the complaint with respect to Arthur Young and Raymond, but we hold that on remand Summer be granted leave to amend to assert more particularized allegations as against Arthur Young and Raymond, if he can do so. See 2A Moore’s Federal Practice, K 9.03 (indicating that dismissal for failure to comply with Rule 9(b) is almost always with leave to amend). III. THE OTHER ISSUES ON APPEAL Our disposition necessarily supplants the district court’s determination that the complaint was without merit and that the defendants were entitled to attorney’s fees. We therefore vacate the award of attorney’s fees, which also makes it unnecessary for us to address the issues on cross-appeal relating to the amount of attorney’s fees. Likewise, we reinstate the pendent state claims. IV. CONCLUSION We affirm the district court’s dismissal of the § 11 and § 12(2) claims as against all defendants. As against all defendants except Arthur Young and Raymond, we reverse the district court’s dismissal of the § 10(b) and Rule 10(b)-5 claims and the § 17 claims and remand for further proceedings not inconsistent with this opinion. As to Arthur Young and Raymond, we affirm the dismissal of the § 10(b) and Rule 10(b)-5 claims and the § 17 claims, but direct that leave to amend be granted. The district court’s award of attorney’s fees is vacated. The pendent state claims are reinstated. All costs of this appeal shall be taxed against appellees. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. . The allegations of concealment are not contained within each and every count of the complaint; however, the allegations are contained at various points in the complaint. We believe it would be contrary to the liberal reading which we must give to a complaint" }, { "docid": "23255845", "title": "", "text": "a grievance. The district court agreed. Although Dale is the appellant, his first argument is that we lack jurisdiction over this appeal because, he says, the district court never entered a final judgment as to the warden. The district court’s grant of summary judgment applied only to the four defendants who still remained in the case; the warden had been dismissed early in the litigation. Dale, though, seems to believe that the case is still active as to the warden. A final, appealable decision is one that disposes of all claims against all parties, with the exception (not applicable here) where the district court complies with the requirements to enter a partial final judgment. See Fed.R.Civ.P. 54(b). A district court’s decision- is final under 28 U.S.C. § 1291 if the court “has finished with the case,” Hill v. Potter, 352 F.3d 1142, 1144 (7th Cir.2003), and “finished” is the only way to describe this litigation as it currently stands in the district court. Dale sought to reinstate the warden as a defendant, but the district court never granted the motion. Rather, the court took Dale’s request “under advisement” and instructed him to file a supplemental pleading explaining how the warden was personally responsible for his injuries. Dale did not comply, so he effectively abandoned his claim against the warden by never mentioning him again. See, e.g., Heft v. Moore, 351 F.3d 278, 281-82 (7th Cir.2003); Laborers’ Pension Fund v. A & C Envtl., Inc., 301 F.3d 768, 774 n. 4 (7th Cir.2002); Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n, 805 F.2d 663, 667 (7th Cir.1986). The district court’s early dismissal of the warden was never vacated, and the court’s later summary judgment order resolved the case as to the four remaining defendants. When the court entered its judgment dismissing the complaint, all parties and all claims had indeed been disposed of. Thus Dale’s jurisdictional argument fails. On the merits, Dale argues that the district court erred in granting summary judgment for the defendants because his pleadings and affidavits show that he requested the administrative grievance form within the" }, { "docid": "22688224", "title": "", "text": "under the Grievance System Policy. Finally, turning to the merits-based arguments that the defendants advance as alternate grounds for affirmance of the District Court, we conclude that Spruill does not state a claim for deliberate indifference against Gooler, but that his allegations against Dr. McGlaughlin and Brown are sufficient to withstand a motion to dismiss. We will therefore affirm in part, reverse in part, and remand for further proceedings against Dr. McGlaughlin and Brown. I. Facts and Procedural History As this case comes to us on the District Court’s grant of a motion to dismiss, we must accept as true the facts as pled in Spruill’s complaint. E.g., Bd. of Trs. of Teamsters Local 863 Pension Fund v. Foodtown, Inc., 296 F.3d 164, 168 (3d Cir.2002). Given that the exhaustion issue turns on the indisputably authentic documents related to Spruill’s grievances, we hold that we may also consider these without converting it to a motion for summary judgment. See Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1212 (10th Cir.2003) (quoting GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997) (noting that “a defendant may submit an indisputably authentic [document] to the court to be considered on a motion to dismiss”)). We now chronicle the facts as set forth in Spruill’s complaint. A. Spruill’s Complaint Spruill is currently incarcerated at the State Correctional Institution at Chester, Pennsylvania (“SCI-Chester”), but he has been housed in at least two other facilities. His complaint alleges that, shortly after he was transferred to the State Correctional Institution at Coal Township, Pennsylvania (“SCI-Coal”) in May 2001, the defendants were deliberately indifferent to his medical needs and subjected him to unnecessarily painful medical treatment. Named as defendants in the complaint are Frank Gillis, the Superintendent at SCI-Coal; Lieutenant Steven Gooler, the Unit Manager of the Restricted Housing Unit (RHU) at SCI-Coal, where Spruill was housed during the events at issue; Dr. Shawn McGlaughlin, a prison physician; and Brian Brown, a physician’s assistant. On May 2, 2001, Spruill was transferred from the State Correctional Institution at Rockview (SCI-Rockview), Pennsylvania to SCI-Coal, where" }, { "docid": "4348419", "title": "", "text": "(7th Cir.1997). It bars a subsequent suit if the claim upon which the suit is based arises from the “same incident, events, transaction, circumstances, or other factual nebula as a prior suit that had gone to final judgment.” Okoro v. Bohman, 164 F.3d 1059, 1062 (7th Cir.1999). The three requirements of claim preclusion under federal law are: (1) an identity of parties or their privies; (2) an identity of causes of action; and (3) a final judgment on the merits. Central States, Southeast and Southwest Areas Pension Fund v. Hunt Truck Lines, Inc., 296 F.3d 624, 628 (7th Cir.2002). When these elements are satisfied, the judgment in the earlier suit bars further litigation of issues that were either raised or could have been raised therein. Kratville v. Runyon, 90 F.3d 195, 197-98 (7th Cir.1996). Although the basic rule is that claim preclusion is an affirmative defense, 18 Charles A. Wright, Arthur R. Miller and Edward H. Cooper, Federal Practice and Procedure § 4405 (1981), the Court of Appeals for the Seventh Circuit has held that a court may raise an affirmative defense on its own if it is clear from the face of the complaint that the defense applies. Gleash v. Yuswak, 308 F.3d 758, 760-61 (7th Cir.2002). In Borzych, 03-C-0575-C, June 11, 2004,1 dismissed plaintiffs claims with prejudice upon stipulation of the parties. Such a dismissal is treated as a final judgment on the merits for purposes of claim preclusion. 18 Moore’s Federal Practice, § 131.30[3][c] (3d ed.2004). See also Matter of Energy Coop., Inc., 814 F.2d 1226, 1234 (7th Cir.1987) (“suit was dismissed ‘with prejudice,’ indicating that the order barred any subsequent suits on the same cause of action.”). Cf. 18 Moore’s Federal Practice § 132.03[2][I] (3d ed.2004) (consent judgments do not satisfy the “actually litigated” requirement necessary under the doctrine of issue preclusion, or non-mutual claim preclusion). I conclude that the earlier suit prevents plaintiff from raising this claim in this case. Plaintiff will not be allowed to proceed against defendants Frank or Casperson on his claim that the denial of the texts “Tower of Wotan” and" }, { "docid": "4348418", "title": "", "text": "May 29, 2003, in which he was told that the books would be destroyed if he did not send them out of the institution. Plaintiff brought this same claim against a slightly different set of defendants in a previous case in this court. Borzych v. Frank, 03-C-0575-C, 2004 WL 67642 (W.D.Wis. January 5, 2004) (plaintiff stated free exercise claim when he alleged that he received May 29, 2003 letter informing him that his copies of “Tower of Wotan” and “Creed of Iron” would be sent out of institution). In that case, I allowed plaintiff to proceed against defendants Frank and Casperson, among others. The similarity of the two cases raises the question whether plaintiff can proceed on these claims, in this case or whether the doctrine of res judicata bars him from doing so. In general, “[t]he doctrine of res judicata (claim preclusion) requires litigants to join in a single suit all legal and remedial theories that concern a single transaction.” Perkins v. Board of Trustees of the Univ. of Ill., 116 F.3d 235, 236 (7th Cir.1997). It bars a subsequent suit if the claim upon which the suit is based arises from the “same incident, events, transaction, circumstances, or other factual nebula as a prior suit that had gone to final judgment.” Okoro v. Bohman, 164 F.3d 1059, 1062 (7th Cir.1999). The three requirements of claim preclusion under federal law are: (1) an identity of parties or their privies; (2) an identity of causes of action; and (3) a final judgment on the merits. Central States, Southeast and Southwest Areas Pension Fund v. Hunt Truck Lines, Inc., 296 F.3d 624, 628 (7th Cir.2002). When these elements are satisfied, the judgment in the earlier suit bars further litigation of issues that were either raised or could have been raised therein. Kratville v. Runyon, 90 F.3d 195, 197-98 (7th Cir.1996). Although the basic rule is that claim preclusion is an affirmative defense, 18 Charles A. Wright, Arthur R. Miller and Edward H. Cooper, Federal Practice and Procedure § 4405 (1981), the Court of Appeals for the Seventh Circuit has held that" }, { "docid": "21734044", "title": "", "text": "the claim subsists as a possible basis for a second action by the plaintiff against the defendant [when] [t]he court in the first action has expressly reserved the plaintiffs right to maintain the second action .... ” Restatement (Second) of Judgments § 26(b)(1) (1982). Indeed, we have previously held that “[i]f a court reserves for later resolution an issue that might otherwise have been adjudicated in the initial proceeding, res judicata will not operate to bar the subsequent suit.” See Energy Co-op., 814 F.2d at 1233. In Hunt I, we specifically held that “[w]hile Central States cannot recover on this appeal our decision does not preclude future recovery,” and that if Hunt failed to pay on the revised demand, Central States needed merely to file suit under the MPPAA’s enforcement scheme to ensure that it received the appropriate payments. 204 F.3d at 743 (emphasis added). Therefore, even if we were to assume that the claims were identical and that a final judgment on the merits had been entered, res judicata would not apply due to our express language in Hunt I. See D & K Prop., 112 F.3d at 260; Energy Co-op., 814 F.2d at 1233. II. Conclusion For the foregoing reasons, we Affirm the judgment of the district court. Subsequently, Hunt sought attorney's fees, which were awarded by the district court. However, on appeal, we held that the district court had abused its discretion in awarding attorney's fees because there was no dispute that Hunt would ultimately face withdrawal liability. See Cent. States, Southeast and Southwest Areas Pension Fund v. Hunt Truck Lines, Inc., 272 F.3d 1000, 1006 (7th Cir.2001) (‘‘Hunt II\"). In so holding, Judge Diane Wood, writing for the court, again instructed Hunt to pay for the withdrawal liability and questioned Hunt's failure to do so. See id. at 1003. MANION, Circuit Judge, concurring. The only reason res judicata does not apply here is because of this court’s (albeit a different panel) express language in Hunt I declaring that the decision would not preclude future recovery. When arbitrator Jaffe eventually issued his final award that did not" }, { "docid": "16138940", "title": "", "text": "54(b) judgment on the PCES claims, which would have permitted an immediate appeal from their dismissal). Then, after striking out in the District of Columbia, Hill could have resumed the Chicago litigation and, if he lost, could on appeal have challenged any of the rulings the court had made in 1997. But in fact the 1997 decision disposed of the entire lawsuit, and was therefore a final decision. It is true that insofar as that decision dismissed the EAS claims without prejudice for failure to exhaust, and the retaliation claim on Hill’s own motion to dismiss that claim without prejudice, a resumption of the litigation in some form could be anticipated. But such an anticipation does not deprive a judgment of finality. United States v. Wallace & Tiernan Co., 336 U.S. 793, 794 n. 1, 69 S.Ct. 824, 93 L.Ed. 1042 (1949); Trustees of Pension, Welfare & Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Electric, 223 F.3d 459, 464 (7th Cir.2000); Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 631 (1st Cir.2000). It’s not like dismissing just the complaint and not the suit, Furnace v. Board of Trustees, 218 F.3d 666, 669-70 (7th Cir.2000); United States v. City of Milwaukee, 144 F.3d 524, 529 n. 7 (7th Cir.1998), or dismissing a suit with leave to reinstate it, as in Principal Mutual Life Ins. Co. v. Cincinnati TV 64 Limited Partnership, 845 F.2d 674, 676 (7th Cir.1988); see also Blanco v. United States, 775 F.2d 53, 56 (2d Cir.1985). The test for finality is not whether the suit is dismissed with prejudice or without prejudice, on the merits or on a jurisdictional ground or on a procedural ground such as failure to exhaust administrative remedies when exhaustion is not a jurisdictional requirement. The test is whether the district court has finished with the case. Shah v. Inter-Continental Hotel Chicago Operating Corp., 314 F.3d 278, 281 (7th Cir.2002); Health Cost Controls of Illinois, Inc. v. Washington, 187 F.3d 703, 707 (7th Cir.1999); Hunt v. Hopkins, 266 F.3d 934, 936 (8th Cir.2001). Often it is possible that a dismissed case" }, { "docid": "5600150", "title": "", "text": "cause of the loss and awarded $10,357,497.69 in damages. “Because Luce would be unable to pay any amount (on top of the damages and penalty imposed under the FCA), the Court assesse[d] a penalty of zero on the FIR-REA violations.” A final judgment was entered on November 23,2016. II DISCUSSION We review the district court’s grant of summary judgment de novo. Cent. States, Se. & Sw. Areas Pension Fund v. Fulkerson, 238 F.3d 891, 894 (7th Cir. 2001). Summary judgment is appropriate when, construing the record in the light most favorable to the nonmoving party, Canen v. Chapman, 847 F.3d 407, 412 (7th Cir. 2017), there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, Blasius v. Angel Auto., Inc., 839 F.3d 639, 644 (7th Cir. 2016). However, we are “not required to draw every conceivable inference from the record” in favor of the non-moving party, but “only those inferences that are reasonable.” Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir. 1999) (quoting Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991)). A. We turn first to Mr. Luce’s contention that his false V-form certifications were not material under Escobar. 1. In Escobar, a young woman died after she received mental health treatment by unlicensed and unsupervised caregivers at a clinic operated by one of Universal Health Services’ subsidiaries. When submitting reimbursement claims to Medicaid, however, the clinic had used payment codes that corresponded to services provided by licensed professionals. The deceased’s parents laten sued Universal Health Services under an “implied false certification theory of liability,” Escobar, 136 S.Ct. at 1997; specifically, the Esco-bars claimed that the clinic “misrepresented its compliance with mental health facility requirements that are so’central to the provision of mental health counseling that the Medicaid program would not have paid the[ ] claims had it known of these violations,” id. at 2004. The district court dismissed the complaint on the ground that none of the regulations that the clinic allegedly violated was a" }, { "docid": "22365458", "title": "", "text": "to amend as of right, see Fed.R.Civ.P. 15(a)(1) (2009), so the situation has changed.) The Forsyth rule is also consonant with our general practice of considering a dismissal to be of the claims and not a final judgment on the complaint, see WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir.1997) (en banc), with the purpose of reducing the number of appeals to this court. Despite its provenance, on reflection, we do not believe that the Forsyth rule is prudent or sufficiently justified, and we agree that it is formalistic and harsh. We also recognize that we are an outlier among the circuits. Although the general rule is that an amended complaint super-cedes the original complaint and renders it without legal effect, most courts have concluded that “the plaintiff does not forfeit the right to challenge the dismissal on appeal simply by filing an amended complaint that does not re-allege the dismissed claim.” Young v. City of Mount Ranier, 238 F.3d 567, 572-73 (4th Cir.2001) (footnote omitted); see In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th Cir.2000); Badger Pharm., Inc. v. Colgate-Palmolive Co., 1 F.3d 621, 625 (7th Cir.1993); Davis, 929 F.2d at 1517; Varnes v. Local 91, Glass Bottle Blowers Ass’n of U.S. & Canada, 674 F.2d 1365, 1370 (11th Cir.1982); Wilson v. First Houston Inv. Corp., 566 F.2d 1235, 1238 (5th Cir.1978), vacated on other grounds, 444 U.S. 959, 100 S.Ct. 442, 62 L.Ed.2d 371 (1979); 3 Moore’s Federal Practice ¶ 15.08(7) (1974). The Fourth Circuit has described this rule as “an exception to the general rule of waiver.” Young, 238 F.3d at 573. We find the reasoning in some of those cases and in some of our own criticizing our rule to be persuasive. First, our current rule is unfair to litigants. For the plaintiff whose complaint has been dismissed, the rule is not merely overly “mechanical,” see 6 Wright & Miller, supra, § 1476; it creates a “Hobson’s choice[,j ... a patently coercive predicament” between amending the complaint— thereby forgoing the chance to appeal the dismissal of some claims — and" }, { "docid": "2999629", "title": "", "text": "summary judgment for the defendants instead of dismissing the due process claim. Curiously, following the district court’s dismissal of the balance of his third amended complaint, Young filed a motion for summary judgment on the claims that had been dismissed. Young had not sought leave to file such a motion and the district court granted defendants’ motion to strike it as an untimely and thus improper filing. The district court subsequently denied Young’s motion to reconsider the order striking his motion for summary judgment. Young’s appeal acknowledges that the balance of his third amended complaint was dismissed pursuant to F.R.C.P. Rule 12(b)(6), yet throughout his brief he characterizes this as an appeal of the district court’s denial of his motion for summary judgment. However that motion was struck and Young has not pursued any argument that the district court abused its discretion by doing so. DeBruyne v. Equitable Life Assur. Soc. of the U.S., 920 F.2d 457, 470 (7th Cir.1990) (denial of motion to reconsider reviewed under abuse of discretion standard). Because the court struck Young’s motion for summary judgment there is no denial of plaintiffs motion for summary judgment for this court to consider. Thus, we consider Young’s appeal of the district court’s dismissal of the third amended complaint and its entry of summary judgment for the defendants on the due process claim to the extent those issues were properly before the court. II. A. Jurisdiction Before we consider whether the district court correctly decided the issues before it, we must ascertain whether those issues were in fact properly before the court. If the court lacked subject-matter jurisdiction over the claim then even an appropriate analysis on the merits is moot. And because jurisdiction cannot be waived by the parties, we must confront the issue even where (as here) the parties have not. Levin v. Attorney Registration and Disciplinary Comm’n, 74 F.3d 763, 766 (7th Cir.1996); Ritter v. Ross, 992 F.2d 750, 752 (7th Cir.1993) (raising jurisdictional question sua sponte), cert. denied, — U.S. -, 114 S.Ct. 694, 126 L.Ed.2d 661 (1994). The jurisdictional impediment to this case is" }, { "docid": "9516377", "title": "", "text": "suit.” Migra v. Warren City School District Board of Education, 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). For res judicata to apply, three factors are necessary: “(1) an identity of the parties or their privies; (2) an identity of the cause of action; and (3) a final judgment on the merits [in the earlier action].” Prochotsky v. Baker & McKenzie, 966 F.2d 333, 334 (7th Cir.1992). A cause of action means “ ‘a single core of operative facts’ which give rise to a remedy.” Golden v. Barenborg, 53 F.3d 866, 869 (7th Cir.1995) (internal citation omitted). Johnson concedes that the same parties are involved in both actions, but argues that the claims are not identical and that there was no final judgment on the merits in the first action. Johnson’s argument fails on both points. First, Johnson asserts that the claims are not the same because the original action was based on copyright infringement, whereas Johnson II is based on state claims of unfair competition and misappropriation. But, as Cypress Hill correctly notes, “[t]wo claims are one for purposes of res judicata if they are based on the same, or nearly the same, factual allegations.” Tartt, 453 F.3d at 822 (internal citation omitted); see also Bethesda Lutheran Homes & Services, Inc. v. Born, 238 F.3d 853, 857 (7th Cir.2001) (“[F]or purposes of res judicata a claim is not an argument or a ground but the events claimed to give rise to a right to a legal remedy”). Here, the facts in both claims are unquestionably identical. Johnson’s second argument — that the original case was not decided on the merits because the action should have been dismissed for lack of subject-matter jurisdiction — fails under Reed Elsevier. Thus, the judge correctly granted Cypress Hill’s motion to dismiss Johnson II, finding the amended complaint barred by res judicata. For these reasons, the judgment of the district court is Affirmed. . The song is available at: http://www. youtube.com/watch?v=zKfZYgHm8So (last visited May 17, 2011). . The members of Cypress Hill — Lawrence Muggerud, Senen Reyes, and Louis" }, { "docid": "9516378", "title": "", "text": "Cypress Hill correctly notes, “[t]wo claims are one for purposes of res judicata if they are based on the same, or nearly the same, factual allegations.” Tartt, 453 F.3d at 822 (internal citation omitted); see also Bethesda Lutheran Homes & Services, Inc. v. Born, 238 F.3d 853, 857 (7th Cir.2001) (“[F]or purposes of res judicata a claim is not an argument or a ground but the events claimed to give rise to a right to a legal remedy”). Here, the facts in both claims are unquestionably identical. Johnson’s second argument — that the original case was not decided on the merits because the action should have been dismissed for lack of subject-matter jurisdiction — fails under Reed Elsevier. Thus, the judge correctly granted Cypress Hill’s motion to dismiss Johnson II, finding the amended complaint barred by res judicata. For these reasons, the judgment of the district court is Affirmed. . The song is available at: http://www. youtube.com/watch?v=zKfZYgHm8So (last visited May 17, 2011). . The members of Cypress Hill — Lawrence Muggerud, Senen Reyes, and Louis Freese— are also named defendants. We will refer to the defendants collectively as Cypress Hill. . The track in question is titled, “Interlude” on some copies of \"Black Sunday” and \"Lock Down” on others. The tracks are identical. \"Interlude” is available at: http://www. youtube.com/watchPv=aADH4148iQo (last visited May 17, 2011). . In March 2004, Cypress Hill did reach an agreement with Sunlight Records, Inc. (owned by Peter Wright, the co-owner of Twinight Records) which claimed that it was the holder of all rights in the Song. The deal for the license was roughly $25,000 and released Cypress Hill and its licensees from all past, present, and future claims related to Cypress Hill's use of the Song in \"Interlude.” . A \"sound recording” copyright protects rights in a specific recording of a musical work. A sound recording copyright is distinct from a \"composition” copyright, which protects rights in the underlying work, i.e., the music and, if applicable, lyrics. 17 U.S.C. § 102(a)(2), (7)." }, { "docid": "12831160", "title": "", "text": "present litigation are not the same as those relied upon in Citizens I, there exists an identity of issues between them because both cases arise from the “same transaction” and involve “the same, or nearly the same[,] factual allegations.” Id. at 22 (internal quotation marks omitted). The plaintiffs timely filed a notice of appeal, as well as a motion for an injunction pending appeal. See Fed.R.Civ.P. 62(c). The district court denied this motion, determining that, because the plaintiffs had not demonstrated a likelihood of prevailing on the merits of their claims, an injunction pending appeal was not warranted. See R.61. II DISCUSSION We review de novo a district court’s denial of a motion for a preliminary injunction on res judicata grounds. Under the doctrine of res judicata, “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). “The three requirements for res judicata under federal law are: (1) an identity of the parties or their privies; (2) an identity of the causes of actions; and (3) a final judgment on the merits.” Cent. States, S.E. & S.W. Areas Pension Fund v. Hunt Truck Lines, Inc., 296 F.3d 624, 628 (7th Cir.2002). If these requirements are fulfilled, res judicata “bars not only those issues which were actually decided in a prior suit, but also all issues which could have been raised in that action.” Brzostowski v. Laidlaw Waste Sys., Inc., 49 F.3d 337, 338 (7th Cir.1995). “Simply put, the doctrine of res judicata provides that, when a final-judgment has been entered on the merits of a ease, it is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” Nevada v. United States, 463 U.S. 110, 129-30," } ]

[ { "docid": "23092078", "title": "", "text": "circumstances, a plaintiff must look to other service of process provisions, notably those specified in Fed.R.Civ.P. 4 or incorporated therein from state law to satisfy this requirement. 2. Applying Section 12 to the Jurisdiction Defendants In view of this construction of Section 12’s service of process provision, we cannot sustain the district court’s exercise of personal jurisdiction over CORD and the nine remaining hospital defendants. The district court expressly ruled that these jurisdiction defendants did not satisfy Section 12’s venue provision because they did not transact business in the district. See Daniel v. American Bd. of Emergency Med., 988 F.Supp. at 263-71. Plaintiffs do not challenge this venue ruling on appeal. Accordingly, for the reasons just discussed in the previous subsection of this opinion, we. conclude that, because plaintiffs cannot establish venue in the Western District of New York under Section 12, they cannot avail themselves of that statute’s worldwide service of process provision to establish personal jurisdiction in that district. We, therefore, affirm dismissal of plaintiffs’ Second Amended Complaint against CORD and the hospital defendants for lack of personal jurisdiction. B. Neither the Clayton Act nor 28 U.S.C. § 1391(b) Supports Venue in the Western District of New York with Respect to ABEM Although ABEM did not raise a personal jurisdiction challenge in the district court, and does not do so on appeal, it does challenge the district court’s conclusion that venue over this action properly resides in the Western District of New York. See Daniel v. American Bd. of Emergency Med., 988 F.Supp. at 258-63. Accordingly, it submits that lack of venue provides an alternative ground for affirming the judgment of dismissal. We agree. Because ABEM’s venue challenge is based upon essentially undisputed facts, we review the district court’s venue determination de novo, see Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir.2005), and conclude that venue is not proper under either the Clayton Act or the general venue statute. 1. Venue Under Section 12 of the Clayton Act The district court concluded that plaintiffs’ claims against ABEM were properly venued in the Western District of" } ]

[ { "docid": "12291527", "title": "", "text": "HSBC, and Société Générale (collectively, the “Fixing Banks”). Plaintiffs are individuals and entities that sold physical gold, gold futures traded on the Commodity Exchange, Inc. (“COMEX”) market, shares in gold exchange-traded funds (“ETFs”), or options on gold ETFs during the Class Period. Seeking to recover losses suffered as a result of Defendants’ alleged manipulation and suppression of the price of gold through the gold “fixing” process, Plaintiffs bring putative class action claims for (1) unlawful restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 et seq.; (2) market manipulation in violation of the Commodity Exchange Act (“CEA”), 7 U.S.C. §§ 1 et seq. and CFTC Rule 180.2; (3) employment of a manipulative or deceptive device and false reporting in violation of the CEA, 7 U.S.C. §§ 1 et seq. and CFTC Rule 180.1; (4) principal-agent liability in violation of the CEA, 7 U.S.C. §§ 1 et seq.; (5) aiding and abetting manipulation in violation of the CEA, 7 U.S.C. §§ 1 et seq., and (6) unjust enrichment. On July 22, 2014, the Court appointed Quinn Emanuel Urquhart & Sullivan, LLP and Berger & Montague P.C. as interim class co-counsel. See Maher v. Bank of Nova Scotia et al., 14-cv-1459 (S.D.N.Y.) (VEC), Dkt. 29. On August 13, 2014, the United States Judicial Panel on Multidis-trict Litigation transferred one case from the Northern District of California to this Court for “coordinated or consolidated pretrial proceedings” along with other cases that had been filed in this District. In re Commodity Exch., Inc., Gold Futures & Options Trading Litig., 38 F.Supp.3d 1394, 1395 (J.P.M.L. 2014); see also 28 U.S.C. § 1407. Discovery was stayed by the Court in these consolidated actions on October 20, 2014. Dkt. 22. On March 16, 2015, Plaintiffs filed a Second Consolidated Amended Class Action Complaint (the “SAC”), Dkt. 44. Defendants have moved to dismiss the SAC through three separate motions, the first filed by UBS, Dkt. 71, the second filed by the Fixing Banks, Dkt. 73, and the third filed by LGMF, Dkt. 75. For the following reasons, the Fixing Banks’ Motion" }, { "docid": "12291639", "title": "", "text": "can suggest anticompetitive conspiracy.”). In the absence of any other circumstantial evidence or plus factors, Plaintiffs’ allegations that UBS quoted prices that were lower than market averages around the PM Fixing are simply inadequate to create a plausible inference of conspiracy. Plaintiffs’ CEA claims fail for similar reasons. Both Plaintiffs’ price manipulation and manipulative device claims require allegations that UBS caused (and intended to cause) the artificial price in question. In re Amaranth Nat. Gas Commodities Litig., 730 F.3d at 173. Because Plaintiffs have failed to allege plausibly that UBS played a role in the Fixing Banks’ conspiracy to suppress gold prices, Plaintiffs cannot establish that UBS caused (and intended to cause) the down ward price manipulation at issue. Likewise, because Plaintiffs have not alleged any (non-conelusory) facts suggesting that UBS intentionally associated itself with and participated in the Fixing Banks’ scheme, their aiding and abetting and principal-agent claims fail as well. See id. (proof of unlawful intent required for aiding and abetting liability under the CEA). Plaintiffs’ claim against UBS for unjust enrichment is likewise dismissed for the same reasons articulated above with respect to the Fixing Banks. XII. Plaintiffs Have Sufficiently Alleged Personal Jurisdiction over LGMF Plaintiffs allege that the Court has personal jurisdiction over LGMF as an alter ego of the Fixing Banks. Pl.’s Opp. LGMF at 1, 6, 9. LGMF does not dispute that the Fixing Banks are subject to the Court’s personal jurisdiction but contends that Plaintiffs have not adequately alleged that LGMF is their alter ego. Moreover, it argues, personal jurisdiction based on an alter ego theory is inconsistent with the Due Process Clause in light of the Supreme Court’s recent decision in Daimler AG v. Bauman, — U.S.-, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014). LGMF Mem. at 4-9. As explained below, Daimler does not support LGMF’s position, and, at this stage in the proceedings, Plaintiffs have adequately pled that LGMF acted as the alter ego of the Fixing Banks. Accordingly, personal jurisdiction is proper, and LGMF’s motion is denied. Plaintiffs bear the burden of establishing personal jurisdiction. When no discovery has taken" }, { "docid": "12291526", "title": "", "text": "OPINION AND ORDER VALERIE CAPRONI, United States District Judge The Complaint in these consolidated cases, which involve the alleged manipulation and suppression of gold prices during the period from January 1, 2004 to June 30, 2013 (the “Class Period”), sug gests that in the era of supercomputers, big data, and sophisticated statistical anal-yses, it may be very difficult to hide illegal conduct that might otherwise have escaped detection. On the other hand, it also brings to mind a quip attributed to Benjamin Disraeli—there are three kinds of lies: lies, damn lies and statistics. Whether the detailed statistical analyses contained in the Complaint reveal ground truth about the activities of the Defendant banks who participated in the Gold Fix or are on the “lies, damn lies and statistics” side of the dichotomy remains to be seen. The Defendants in this case are UBS AG and UBS Securities LLC (together, “UBS”); The London Gold Market Fixing Ltd. (“LGMF”); and the five LGMF fixing banks during the Class Period: The Bank of Nova Scotia (“BNS”), Barclays, Deutsche Bank, HSBC, and Société Générale (collectively, the “Fixing Banks”). Plaintiffs are individuals and entities that sold physical gold, gold futures traded on the Commodity Exchange, Inc. (“COMEX”) market, shares in gold exchange-traded funds (“ETFs”), or options on gold ETFs during the Class Period. Seeking to recover losses suffered as a result of Defendants’ alleged manipulation and suppression of the price of gold through the gold “fixing” process, Plaintiffs bring putative class action claims for (1) unlawful restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 et seq.; (2) market manipulation in violation of the Commodity Exchange Act (“CEA”), 7 U.S.C. §§ 1 et seq. and CFTC Rule 180.2; (3) employment of a manipulative or deceptive device and false reporting in violation of the CEA, 7 U.S.C. §§ 1 et seq. and CFTC Rule 180.1; (4) principal-agent liability in violation of the CEA, 7 U.S.C. §§ 1 et seq.; (5) aiding and abetting manipulation in violation of the CEA, 7 U.S.C. §§ 1 et seq., and (6) unjust enrichment. On" }, { "docid": "12291644", "title": "", "text": "Court’s concern regarding the Ninth Circuit’s “sprawling view of general jurisdiction,” id. does not apply where there are allegations that the subsidiary was in fact the alter ego of a corporation over which jurisdiction is proper. See NYKCool A.B. v. Pac. Int’l Servs., Inc., 66 F.Supp.3d 385, 392-93 (S.D.N.Y. 2014) (rejecting argument that Daimler extends to alter-ego jurisdiction). The Court agrees with Plaintiffs that the alter ego theory of jurisdiction is viable. In order plausibly to allege that LGMF was the Fixing Banks’ alter ego, Plaintiffs must show: (1) that “the [Fixing Banks] exercised complete domination over [LGMF] with respect to the transac tion at issue,” and (2) that “such domination was used to commit a fraud or wrong that injured the [Plaintiffs].” Lakah v. UBS AG, 996 F.Supp.2d 250, 260 (S.D.N.Y. 2014) (quoting MAG Portfolio Consultant, GMBH v. Merlin Biomed Grp. LLC, 268 F.3d 58, 63 (2d Cir. 2001) (internal quotation marks omitted)). This standard is “relaxed where the alter ego theory is used not to impose liability, but merely to establish jurisdiction.” Int'l Equity Invs., Inc., 475 F.Supp.2d at 459 (citing Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)). In the jurisdictional context, a plaintiff need only show that the “allegedly controlled entity “was a shell’ for the allegedly controlling party.” Id. At this stage, Plaintiffs have adequately alleged that LGMF is the alter ego of the Fixing Banks. This conclusion follows from the Court’s finding supra that Plaintiffs have plausibly alleged—albeit barely—that the Fixing Banks engaged in a conspiracy to manipulate the Fix Price between January 1, 2006 and December 31, 2012. According to the SAC, this scheme operated around and through the PM Fixing call administered by LGMF. The SAC alleges that the PM Fixing call was the perfect locus for the Fixing Banks’ scheme because it was a seemingly-legitimate opportunity for the Fixing Banks to share information necessary to their collusion. SAC ¶¶ 74, 201. Moreover, the SAC alleges that it was through the Fix Price, set by the Fixing Banks on LGMF’s behalf, that the Fixing Banks ultimately profited" }, { "docid": "12291666", "title": "", "text": "the coordinate venue provision quoted-above. Daniel, 428 F.3d at 423. The jurisdictional provision of the CEA, 7 U.S.C. § 25, is phrased differently and has not been interpreted to require plaintiffs to also satisfy the CEA’s parallel venue provision. See In re LIBOR-Based Fin. Instruments Antitrust Litig., No. 11-md-2262 (NRB), 2015 WL 6696407, at *19 n.28. Thus, Plaintiffs need not satisfy the venue provision of the CEA (or the Clayton Act) for personal jurisdiction to be proper under the CEA, and, as Plaintiffs explain, personal jurisdiction under the CEA is adequate to establish supplementary jurisdiction over Plaintiffs’ other claims. PL’s Mem. Opp. LGMF at 8 n. 12. . Because the Court concludes that LGMF is the Fixing Banks' alter ego it need not reach Plaintiffs' arguments that personal jurisdiction is proper under a \"conspiracy jurisdiction” theory. Pis.’ Opp. LGMF at 7-8. It also is unnecessary to consider the parties arguments regarding the application of Federal Rules of Civil Procedure 4(k)(l) and 4(k)(2). . Moreover, the Supreme Court made clear that an agency relationship remains relevant to assertions of specific jurisdiction. Id. at 759 n.13. . While LGMF suggests that English law may govern whether the Court may pierce LGMF’s corporate veil, LGMF has not provided any indication that there is a \"true conflict of laws” between English law and New York law on this point. In the absence of a true conflict, the Court will apply New York law. See Int’l Equity Invs., Inc., 475 F.Supp.2d at 458-59 (applying New York law to veil-piercing analysis in the absence of any identified conflict between New York and English law). Likewise, although Plaintiffs suggest that Federal common law, rather than New York law may govern, there is no discernable difference with respect to the issues here. See Wajilam Exports (Singapore) Pte. Ltd. v. ATL Shipping Ltd., 475 F.Supp.2d 275, 284 n.10 (S.D.N.Y. 2006) (Federal common law and New York law of veil-piercing are not \"meaningfully” distinct); see also Lakah, 996 F.Supp.2d at 260 (\"the Second Circuit’s common law standard [for veil piercing] is taken directly from New York law”)." }, { "docid": "12291604", "title": "", "text": "551 U.S. 877, 886, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007)). The Fixing Banks’ Motion to Dismiss Plaintiffs’ antitrust claims is, therefore, denied with respect to Plaintiffs’ claim for conspiracy in restraint of trade from 2006 through 2012 and otherwise granted with respect to the balance of the Class Period. V. Plaintiffs Have Standing to Assert CEA Claims Under section 22(a) of the CEA, a plaintiff has standing to bring a commodities manipulation action only if he or she suffered “actual damages” as a result of a defendant’s manipulation. 7 U.S.C. § 25(a)(1). To establish “actual damages” a plaintiff must show an “actual injury caused by the violation,” LIBOR II, 962 F.Supp.2d at 620 (quoting Ping He (Hai Nam) Co. v. NonFerrous Metals (U.S.A.) Inc., 22 F.Supp.2d 94, 107 (S.D.N.Y. 1998), vacated on other grounds, 187 F.R.D. 121 (S.D.N.Y. 1999)). Where, as here, CEA claims are based on discrete, episodic instances of manipulation, plaintiffs must allege that they “engaged in a transaction at a time during which prices were artificial as a result of defendants’ alleged ... manipulative conduct, and that the artificiality was adverse to their position.” Id. at 622. The Fixing Banks argue that Plaintiffs lack CEA standing because Plaintiffs fail to allege that they “engaged in a transaction at a time during which prices were artificial.” Defs.’ Mem. at 48 (citing LIBOR II, 962 F.Supp.2d at 622 (emphasis added)). But Plaintiffs allege that the effects of Defendants’ manipulation persisted beyond the PM Fixing window. SAC ¶ 222 & chart. While Plaintiffs’ allegations of “persistence” are potentially in tension with their allegations that the PM Fixing marked a uniquely dysfunctional period of the trading day, they are not necessarily incompatible. Viewing the allegations in the light most favorable to Plaintiffs, the Court could find that Plaintiffs have adequately alleged that, on days on which Defendants engaged in manipulation, the Fixing marked an abrupt downward aberration in pricing, which abated gradually, but perhaps not completely, over time. Under such circumstances, allegations that Plaintiffs sold gold futures on specifically identified dates on which Defendants are alleged to have artificially suppressed" }, { "docid": "10154674", "title": "", "text": "2 of the Sherman Act, 15 U.S.C. § 2. CAC ¶ 344. The CAC alleges that the defendants reported “excessive trading volumes of uneconomic trades and maintained an excessively high market share during bidweek” at the four regional hubs, “which impacted and controlled the reported monthly index settlement prices” at those hubs. Id. ¶ 346. The CAC further alleges that the plaintiffs— who traded natural gas derivatives “whose prices were inextricably linked to the price of natural gas” at the four regional hubs— “were deprived of normal, competitive trading patterns” and suffered financial losses as a consequence. Id. ¶ 351. The plaintiffs seek treble damages under § 4 of the Clayton Act, 15 U.S.C. § 15, as well as punitive and actual damages, costs, and fees. III. A. The defendants move to dismiss the CEA claims, Counts One through Four, for failure plausibly to allege damages. “The CEA prohibits any person from ‘manipulating] or attempting] to manipulate the price of any commodity.’” In re Commodity Exchange, Inc. Silver Futures and Options Trading Litig. (“Silver Futures”) 560 Fed.Appx. 84, 86 (2d Cir. 2014) (summary order) (quoting 7 U.S.C. § 13(a)(2)). “While the CEA itself does not define the term, a court will find manipulation where (1) Defendants possessed an ability to influence market prices; (2) an artificial price existed; (3) Defendants caused the artificial prices; and (4) Defendants specifically intended to cause the artificial price.” In re Amaranth Natural Gas Commodities Litig., (“Amaranth III”) 730 F.3d 170, 173 (2d Cir. 2013) (quotation marks omitted). In order to avoid dismissal, the plaintiffs “not only must allege the elements of a commodities manipulation claim, but also must show that they have standing to sue.” In re LIBOR-based Fin. Instruments Antitrust Litig. (“LIBOR I”), 962 F.Supp.2d 606, 620 (S.D.N.Y. 2013). “Under section 22(a) of the CEA, a plaintiff has standing to bring a commodities manipulation action only if he has suffered ‘actual damages’ as a result of defendant’s manipulation.” Id (quoting 7 U.S.C. § 25(a)(1)). “The term ‘actual damages’ has been applied by courts in a straightforward manner to require a showing of actu" }, { "docid": "12291665", "title": "", "text": "be required to adduce significantly more evidence establishing that agents of the Fixing Banks violated the CEA and did so acting within the scope of their employment. . Notably, Plaintiffs do not claim' to be clients of UBS who suffered losses as a result of UBS front-running their orders or triggering their stop loss orders. See SAC ¶¶ 301-02. Rather Plaintiffs allege that they \"suffered harm in respect of the sales they conducted where the relevant sales price was artificially lowered by collusive manipulation” by the Defendants' in connection with the PM Fixing. SAC ¶¶ 323-28. . Citing Daniel v. Am. Bd. of Emergency Medicine, 428 F.3d 408, 423 (2d Cir. 2005), LGMF asserts that statutory personal jurisdiction under the Sherman Act—and seemingly under the CEA—is proper only if Plaintiffs can show that venue is proper because “LGMF is ‘an inhabitant,’ ‘may be found,' or ‘transacts business’ in this district.” LGMF Mem. at 3. This argument is at best a red herring. Daniel requires a plaintiff establishing jurisdiction under the Sherman Act to also satisfy the coordinate venue provision quoted-above. Daniel, 428 F.3d at 423. The jurisdictional provision of the CEA, 7 U.S.C. § 25, is phrased differently and has not been interpreted to require plaintiffs to also satisfy the CEA’s parallel venue provision. See In re LIBOR-Based Fin. Instruments Antitrust Litig., No. 11-md-2262 (NRB), 2015 WL 6696407, at *19 n.28. Thus, Plaintiffs need not satisfy the venue provision of the CEA (or the Clayton Act) for personal jurisdiction to be proper under the CEA, and, as Plaintiffs explain, personal jurisdiction under the CEA is adequate to establish supplementary jurisdiction over Plaintiffs’ other claims. PL’s Mem. Opp. LGMF at 8 n. 12. . Because the Court concludes that LGMF is the Fixing Banks' alter ego it need not reach Plaintiffs' arguments that personal jurisdiction is proper under a \"conspiracy jurisdiction” theory. Pis.’ Opp. LGMF at 7-8. It also is unnecessary to consider the parties arguments regarding the application of Federal Rules of Civil Procedure 4(k)(l) and 4(k)(2). . Moreover, the Supreme Court made clear that an agency relationship remains relevant" }, { "docid": "12291641", "title": "", "text": "place, however, a plaintiff need only make a prima facie showing of jurisdiction—through “legally sufficient allegations”—to survive a Rule 12(b)(2) motion. In re Parmalat Sec. Litig., 376 F.Supp.2d 449, 452 (S.D.N.Y. 2005). The Court will construe “all pleadings and affidavits in the light most favorable to the plaintiff’ and resolve “all doubts in the plaintiffs favor.” Penguin Group (USA) Inc. v. American Buddha, 609 F.3d 30, 34 (2d Cir. 2010) (citations omitted). On the other hand, the Court need not accept either party’s legal conclusions as true, nor will it draw “argumentative inferences” in either party’s favor. See Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012). Plaintiffs contend that the Court has personal jurisdiction over the Fixing Banks (and LGMF) under Federal Rules of Civil Procedure 4(k)(1) and 4(k)(2) or under the Sherman Act and the CEA. Pl.’s Mem. Opp. LGMF at 5, 8, 9. LGMF concedes that personal jurisdiction under the CEA extends to the fullest extent permitted by the Due Process Clause. LGMF Mem. at 2-3; Amaranth I, 587 F.Supp.2d at 526 (CEA extends personal jurisdiction to limits of Due Process Clause). Thus, personal jurisdiction over LGMF is proper so long as it comports with due process. Because LGMF concedes that personal jurisdiction over the Fixing Banks is proper, personal jurisdiction over LGMF comports with due process so long as the alter ego theory of jurisdiction is viable and Plaintiffs have adequately pled that LGMF is an alter ago of the Fixing Banks. The Second Circuit has consistently recognized that “it is compatible with due process for a court to exercise personal jurisdiction over an individual or a corporation ... when the individual or corporation is an alter ego or successor of a corporation that would be subject to personal jurisdiction in that court.” Transfield, ER Cape Ltd. v. Indus. Carriers, Inc., 571 F.3d 221, 224 (2d Cir. 2009) (quoting Patin v. Thoroughbred Power Boats, 294 F.3d 640, 653 (5th Cir. 2002)); Int’l Equity Invs., Inc. v. Opportunity Equity Partners, Ltd., 475 F.Supp.2d 456, 458-460 (S.D.N.Y. 2007) (personal jurisdiction established" }, { "docid": "12308690", "title": "", "text": "the purchaser by artificially altering their bids or agreeing to abstain from bidding entirely. See, e.g., Shaw v. United States, 371 F.Supp.2d 265, 272 (E.D.N.Y. 2005) (citing United States v. W.F. Brinkley & Son Constr. Co., 783 F.2d 1157, 1161 (4th Cir. 1986) (illegal bid rigging occurs “where two or more persons agree that one will submit a bid for a project higher or lower than the others or that one will not submit a bid at all”)); Philip Morris Inc. v. Heinrich, No. 95 CIV. 0328 (LMM), 1996 WL 363156, at *9 (S.D.N.Y. June 28, 1996) (citing United States v. Portsmouth Paving Corp., 694 F.2d 312, 325 (4th Cir. 1982) (“Any agreement between competitors pursuant to which contract offers are submitted to or withheld from a third party constitutes bid rigging per se.”)). Plaintiffs allege that Defendants engaged in bid rigging by “rig[ing] the supposedly ‘Walrasian’ auction of the Silver Fix,” SAC ¶ 280, but Plaintiffs ignore the fact that the auction process was a benchmarking mechanism, not a bidding process for any particular contract, project or transaction. Because there was no purchaser on the other side of the Fixing auction, and because Plaintiffs allege no additional facts in support of their bid rigging claim, the Fixing Members’ Motion to Dismiss Plaintiffs’ bid rigging claim is granted. VI. Plaintiffs Have Standing to Assert CEA Claims Under section 22(a) of the CEA, a plaintiff has standing to bring a commodities manipulation action only if he or she suffered “actual damages” as a result of a defendant’s manipulation. 7 U.S.C. § 25(a)(1). To establish “actual damages” a plaintiff must show an “actual injury caused by the violation,” In re LI-BOR-Based Fin. Instruments Antitrust Litig. (LIBOR II), 962 F.Supp.2d 606, 620 (S.D.N.Y. 2013) (quoting Ping He (Hai Nam) Co. v. NonFerrous Metals (U.S.A.) Inc., 22 F.Supp.2d 94, 107 (S.D.N.Y. 1998), vacated on other grounds, 187 F.R.D. 121 (S.D.N.Y. 1999)). Where, as here, CEA claims are based on discrete, episodic instances of manipulation, plaintiffs must allege that they “engaged in a transaction at a time during which prices were artificial as a result" }, { "docid": "12291640", "title": "", "text": "likewise dismissed for the same reasons articulated above with respect to the Fixing Banks. XII. Plaintiffs Have Sufficiently Alleged Personal Jurisdiction over LGMF Plaintiffs allege that the Court has personal jurisdiction over LGMF as an alter ego of the Fixing Banks. Pl.’s Opp. LGMF at 1, 6, 9. LGMF does not dispute that the Fixing Banks are subject to the Court’s personal jurisdiction but contends that Plaintiffs have not adequately alleged that LGMF is their alter ego. Moreover, it argues, personal jurisdiction based on an alter ego theory is inconsistent with the Due Process Clause in light of the Supreme Court’s recent decision in Daimler AG v. Bauman, — U.S.-, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014). LGMF Mem. at 4-9. As explained below, Daimler does not support LGMF’s position, and, at this stage in the proceedings, Plaintiffs have adequately pled that LGMF acted as the alter ego of the Fixing Banks. Accordingly, personal jurisdiction is proper, and LGMF’s motion is denied. Plaintiffs bear the burden of establishing personal jurisdiction. When no discovery has taken place, however, a plaintiff need only make a prima facie showing of jurisdiction—through “legally sufficient allegations”—to survive a Rule 12(b)(2) motion. In re Parmalat Sec. Litig., 376 F.Supp.2d 449, 452 (S.D.N.Y. 2005). The Court will construe “all pleadings and affidavits in the light most favorable to the plaintiff’ and resolve “all doubts in the plaintiffs favor.” Penguin Group (USA) Inc. v. American Buddha, 609 F.3d 30, 34 (2d Cir. 2010) (citations omitted). On the other hand, the Court need not accept either party’s legal conclusions as true, nor will it draw “argumentative inferences” in either party’s favor. See Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012). Plaintiffs contend that the Court has personal jurisdiction over the Fixing Banks (and LGMF) under Federal Rules of Civil Procedure 4(k)(1) and 4(k)(2) or under the Sherman Act and the CEA. Pl.’s Mem. Opp. LGMF at 5, 8, 9. LGMF concedes that personal jurisdiction under the CEA extends to the fullest extent permitted by the Due Process Clause. LGMF Mem. at" }, { "docid": "12291638", "title": "", "text": "(or could be) named as defendants on that basis. Finally, while FINMA fined UBS for misconduct in the FX and precious metals markets, nothing in FINMA’s findings plausibly supports Plaintiffs’ conspiracy allegations here. In particular, FINMA’s findings that UBS shared order information with “third parties” and engaged in front-running and other conduct against its clients’ interests, does not support Plaintiffs’ allegation that UBS conspired with the Fixing Banks (or others) to manipulate the Gold Fixing. SAC ¶¶ 301-02. At best, Plaintiffs allege that UBS engaged in parallel conduct by offering (along with the Fixing Banks) below-market quotes that coincided with downward swings in the price of gold around the PM Fixing. SAC ¶¶ 250-67. But allegations of parallel conduct “must be placed in a context that raises a suggestion of a preceding agreement, not merely parallel conduct that could just as well be independent action.” Twombly, 550 U.S. at 557, 127 S.Ct. 1955; see also In re Elevator Antitrust Litig., 502 F.3d at 51 (“[Similar pricing can suggest competition at least as plausibly as it can suggest anticompetitive conspiracy.”). In the absence of any other circumstantial evidence or plus factors, Plaintiffs’ allegations that UBS quoted prices that were lower than market averages around the PM Fixing are simply inadequate to create a plausible inference of conspiracy. Plaintiffs’ CEA claims fail for similar reasons. Both Plaintiffs’ price manipulation and manipulative device claims require allegations that UBS caused (and intended to cause) the artificial price in question. In re Amaranth Nat. Gas Commodities Litig., 730 F.3d at 173. Because Plaintiffs have failed to allege plausibly that UBS played a role in the Fixing Banks’ conspiracy to suppress gold prices, Plaintiffs cannot establish that UBS caused (and intended to cause) the down ward price manipulation at issue. Likewise, because Plaintiffs have not alleged any (non-conelusory) facts suggesting that UBS intentionally associated itself with and participated in the Fixing Banks’ scheme, their aiding and abetting and principal-agent claims fail as well. See id. (proof of unlawful intent required for aiding and abetting liability under the CEA). Plaintiffs’ claim against UBS for unjust enrichment is" }, { "docid": "12291664", "title": "", "text": "not depend on Defendants’ \"average” trading activity, but rather Defendants’ trading around the PM Fixing on days when the Fix Price was allegedly manipulated. . The Court notes that, in contrast to Plaintiffs’ price manipulation claims, Plaintiffs' manipulative device claims under Section 6(c)(1) and 17 C.F.R. 180.1 require scienter to be proven by intentional or reckless conduct. See 17 C.F.R. § 180.1(a); Prohibition on Manipulative and Deceptive Devices, 76 Fed. Reg. at 41,404; CFTC v. Kraft Foods Grp., Inc., 153 F.Supp.3d 996, 1014-15 (N.D. Ill. 2015), motion to certify appeal denied, No. 15 C 2881, 195 F.Supp.3d 996, 2016 WL 3907027 (N.D. Ill. July 19, 2016). Because the Court has already found that Plaintiffs alleged strong circumstantial evidence of conscious misbehavior or recklessness, this element has been adequately alleged. . The SAC’s relatively thin principal-agent allegations reflect in part the posture of this case. None of the individual defendants, presumably employees of the Fixing Banks, has been identified, and there has been no document discovery. Assuming this case reaches the summary judgment stage, Plaintiffs will be required to adduce significantly more evidence establishing that agents of the Fixing Banks violated the CEA and did so acting within the scope of their employment. . Notably, Plaintiffs do not claim' to be clients of UBS who suffered losses as a result of UBS front-running their orders or triggering their stop loss orders. See SAC ¶¶ 301-02. Rather Plaintiffs allege that they \"suffered harm in respect of the sales they conducted where the relevant sales price was artificially lowered by collusive manipulation” by the Defendants' in connection with the PM Fixing. SAC ¶¶ 323-28. . Citing Daniel v. Am. Bd. of Emergency Medicine, 428 F.3d 408, 423 (2d Cir. 2005), LGMF asserts that statutory personal jurisdiction under the Sherman Act—and seemingly under the CEA—is proper only if Plaintiffs can show that venue is proper because “LGMF is ‘an inhabitant,’ ‘may be found,' or ‘transacts business’ in this district.” LGMF Mem. at 3. This argument is at best a red herring. Daniel requires a plaintiff establishing jurisdiction under the Sherman Act to also satisfy" }, { "docid": "12308622", "title": "", "text": "OPINION & ORDER VALERIE CAPRONI, United States District Judge: These consolidated cases involve the alleged manipulation and suppression of silver prices during the period from January 1, 1999 “through the date on which the effects of Defendants’ unlawful conduct cease” (the “Class Period”). The Defendants are: Deutsche Bank, HSBC, The Bank of Nova Scotia (collectively the “Fixing Members”) and UBS AG (“UBS” and together with the Fixing Members, the “Defendants”). Plaintiffs are individuals and entities that bought or sold physical silver or silver futures, “mini” silver futures or options contracts through the Chicago Board of Trade (“CBOT”), NYSE LIFFE or Commodity Exchange, Inc. (“COMEX”) during the Class Period. Seeking to recover losses suffered as a result of Defendants’ alleged manipulation and suppression of silver prices through the silver “fixing” process, Plaintiffs bring putative class action claims for (1) price fixing, bid rigging and conspiracy in restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 et seq.-, (2) manipulation in violation of the Commodity Exchange Act (“CEA”), 7 U.S.C. § 1 et seq.-, (3) principal-agent liability in violation of the CEA, 7 U.S.C. § 1 et seq.-, (4) aiding and abetting manipulation in violation of the CEA, 7 U.S.C. § 1 et seq.-, (5) manipulation by false reporting, fraud and deceit in violation of the CEA, 7 U.S.C. § 1 et seq., and CFTC Rule 180.1(a); and (6) unjust enrichment. On October 9, 2014, the United States Judicial Panel on Multidistrict Litigation transferred one related case from the Eastern District of New York to this Court for “coordinated or consolidated pretrial proceedings” with another case that had been filed in this District. In re London Silver Fixing, Ltd., Antitrust Litig., 52 F.Supp.3d 1381, 1381-2 (J.P.M.L. 2014); see also 28 U.S.C. § 1407. With the filing of eight additional “tag-along” actions, there are now ten cases comprising this consolidated multidistrict litigation. Pursuant to the Court’s Order dated October 14, 2014, formal discovery has been stayed. See Order No. 1, In re London Silver Fixing, Ltd., Antitrust Litig., 14-md-2573 (S.D.N.Y. Oct. 14, 2015) (VEC), Dkt. 4." }, { "docid": "12291603", "title": "", "text": "single case from this District in which a court has done so at the pleading stage. Moreover, disregarding all such analyses here would effectively foreclose Plaintiffs’ ability to state an antitrust claim for manipulation of the Gold Fixing unless they had direct evidence, which is generally not required at the pleading stage. See Anderson News, 680 F.3d at 183-84. While the Court evaluates Plaintiffs’ analysis-based allegations ■with as much scrutiny as any other, such allegations cannot be wholly disregarded. In short, the Court finds that Plaintiffs have plausibly alleged an antitrust conspiracy from 2006 through 2012 with respect to the Fixing Banks. Plaintiffs adequately allege that the Fixing Banks, horizontal competitors in the relevant markets for physical gold and gold derivatives, conspired artificially to suppress the Fix Price, causing Plaintiffs to suffer losses on their Gold Investments. Because Plaintiffs have sufficiently pled a per se violation, they “need not separately plead harm to competition.” In re Foreign Exch. Benchmark Rates Antitrust Litig., 74 F.Supp.3d at 594 (citing Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 886, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007)). The Fixing Banks’ Motion to Dismiss Plaintiffs’ antitrust claims is, therefore, denied with respect to Plaintiffs’ claim for conspiracy in restraint of trade from 2006 through 2012 and otherwise granted with respect to the balance of the Class Period. V. Plaintiffs Have Standing to Assert CEA Claims Under section 22(a) of the CEA, a plaintiff has standing to bring a commodities manipulation action only if he or she suffered “actual damages” as a result of a defendant’s manipulation. 7 U.S.C. § 25(a)(1). To establish “actual damages” a plaintiff must show an “actual injury caused by the violation,” LIBOR II, 962 F.Supp.2d at 620 (quoting Ping He (Hai Nam) Co. v. NonFerrous Metals (U.S.A.) Inc., 22 F.Supp.2d 94, 107 (S.D.N.Y. 1998), vacated on other grounds, 187 F.R.D. 121 (S.D.N.Y. 1999)). Where, as here, CEA claims are based on discrete, episodic instances of manipulation, plaintiffs must allege that they “engaged in a transaction at a time during which prices were artificial as a result of defendants’" }, { "docid": "12308623", "title": "", "text": "§ 1 et seq.-, (3) principal-agent liability in violation of the CEA, 7 U.S.C. § 1 et seq.-, (4) aiding and abetting manipulation in violation of the CEA, 7 U.S.C. § 1 et seq.-, (5) manipulation by false reporting, fraud and deceit in violation of the CEA, 7 U.S.C. § 1 et seq., and CFTC Rule 180.1(a); and (6) unjust enrichment. On October 9, 2014, the United States Judicial Panel on Multidistrict Litigation transferred one related case from the Eastern District of New York to this Court for “coordinated or consolidated pretrial proceedings” with another case that had been filed in this District. In re London Silver Fixing, Ltd., Antitrust Litig., 52 F.Supp.3d 1381, 1381-2 (J.P.M.L. 2014); see also 28 U.S.C. § 1407. With the filing of eight additional “tag-along” actions, there are now ten cases comprising this consolidated multidistrict litigation. Pursuant to the Court’s Order dated October 14, 2014, formal discovery has been stayed. See Order No. 1, In re London Silver Fixing, Ltd., Antitrust Litig., 14-md-2573 (S.D.N.Y. Oct. 14, 2015) (VEC), Dkt. 4. On November 25, 2014, the Court appointed Lowey Dannenberg Cohen & Hart, P.C. and Grant & Eisenhofer P.A. as interim class co-counsel. Dkt. 17. On January 26, 2015, Plaintiffs filed a first Consolidated Amended Class Action Complaint (the “FAC”), Dkt. 34, which Defendants moved to dismiss on March 27, 2015, Dkts. 56-61. On April 17, 2015, Plaintiffs filed a Second Consolidated Amended Class Action Complaint (the “SAC”). Dkt. 63. Defendants have moved to dismiss the SAC through two separate motions, the first filed by UBS, Dkt. 73, and the second filed by the Fixing Members, Dkt. 75. For the following reasons, UBS’s Motion to Dismiss is GRANTED, and the Fixing Members’ Motion to Dismiss is GRANTED IN PART and DENIED IN PART. BACKGROUND I. The Silver Fixing Since 1897, a small group of silver bullion dealers, including the Fixing Members and their predecessors, have met in London (initially in-person and later via teleconference) to set the daily benchmark price of silver. SAC ¶ 95. Throughout the Class Period until August 14, 2014, the Fixing Members," }, { "docid": "12291652", "title": "", "text": "Action Complaint ¶¶ 102-03. . Unless otherwise noted, citations to the docket shall be to the MDL case docket for these consolidated actions, 14-md-2548. . The facts are taken from the Second Amended Complaint. . \"Good Delivery\" gold refers to gold that meets certain quality standards and is used for settling transactions in the London Bullion Market. Id. ¶ 93. .Defendant Deutsche Bank was a LGMF member until May 2014 when it resigned its seat after trying, but failing, to sell the seat to another institution in the wake of an investigation by German regulators into potential manipulation in the precious metals markets. Id. ¶¶ 22, 279. . Plaintiffs further allege that Defendants used manipulative trading tactics such as “spoofing” (sending false signals to the market by placing large orders that were never executed), “wash sales” (placing large orders that are executed and then quickly reversed) and \"front running” of customer orders in order artificially to suppress the price of gold. SAC ¶ 8 n.2. In support of these allegations, however, Plaintiffs' rely exclusively on various regulatory investigations and findings, discussed further infra, regarding the manipulation of foreign exchange and precious metals markets, generally, and the independent action of Barclays with respect to a single instance of price manipulation. Id. ¶¶ 283-308. . See, e.g., In re Foreign Exch. Benchmark Rates Antitrust Litig., 74 F.Supp.3d 581, 592 (S.D.N.Y. 2015); Laydon v. Mizuho Bank, Ltd., No. 12-cv-3419, 2014 WL 1280464 (S.D.N.Y. Mar. 28, 2014), Dkt. 150-9; In re LIBOR-Based Fin. Instruments Antitrust Litig. (LIBOR I), 935 F.Supp.2d 666, 681 (S.D.N.Y.2013) rev’d Gelboim v. Bank of Am. Corp., 823 F.3d 759 (2d Cir. 2016). . Plaintiffs fail, however, to offer an explanation for why the pattern of downward swings around the PM Fixing returned in 2014. Id. ¶ 170 & chart. . Defendants point out, however, that the reports on which Plaintiffs rely for the premise that the majority of Defendants' derivative holdings were \"active trading positions\" actually reflect market-making positions that the Fixing Banks held to serve their clients. Defs.’ Mem. at 12 n.6. . As with most futures contracts, most" }, { "docid": "12308723", "title": "", "text": "defendants on that basis. Finally, while FINMA fined UBS for misconduct in the FX and precious metals markets, nothing in the FINMA UBS Report plausibly supports Plaintiffs’ conspiracy allegations here. In particular, FINMA’s findings that UBS shared order information with “third parties” and engaged in “conduct against the interests of [UBS’s] own clients,” FIN-MA UBS Report at 12, including the repeated front running of one client’s silver fix orders, does not support Plaintiffs allegation that UBS conspired with the Fixing Members (or others) to manipulate the Silver Fixing, SAC ¶¶ 220, 224. At best, Plaintiffs allege that UBS engaged in parallel conduct by offering (along with the Fixing Members) below-market quotes around the Fixing that coincided with downward reversions in the price of silver. SAC ¶¶ 155-66 & Figs. 21-28. But allegations of parallel conduct “must be placed in a context that raises a suggestion of a preceding agreement, not merely parallel conduct that could just as well be independent action.” Twombly, 550 U.S. at 557, 127 S.Ct. 1955; see also In re Elevator Antitrust Litig., 502 F.3d at 51 (“[SJimilar pricing can suggest competition at least as plausibly as it can suggest anticompetitive conspiracy.”). In the absence of any other circumstantial evidence or plus factors, Plaintiffs’ allegations that UBS quoted prices that were lower than market averages around the Fixing call are simply inadequate to create a plausible inference of unlawful activity. Plaintiffs’ CEA claims against UBS fail for similar reasons. Both Plaintiffs’ price manipulation and manipulative device claims require allegations that UBS caused (and intended to cause) the artificial price in question. In re Amaranth Nat. Gas Commodities Litig., 730 F.3d at 173. Because Plaintiffs have failed to allege plausibly that UBS played any part in the Fixing Members’ conspiracy to suppress silver prices, Plaintiffs cannot establish that UBS caused (and intended to cause) the downward price manipulation at issue. Likewise, because Plaintiffs have not alleged any (non-conclusory) facts suggesting that UBS intentionally associated itself with and participated in the Fixing Members’ scheme, their aiding and abetting and principal-agent claims fail as well. See id. at 182 (proof" }, { "docid": "12308691", "title": "", "text": "contract, project or transaction. Because there was no purchaser on the other side of the Fixing auction, and because Plaintiffs allege no additional facts in support of their bid rigging claim, the Fixing Members’ Motion to Dismiss Plaintiffs’ bid rigging claim is granted. VI. Plaintiffs Have Standing to Assert CEA Claims Under section 22(a) of the CEA, a plaintiff has standing to bring a commodities manipulation action only if he or she suffered “actual damages” as a result of a defendant’s manipulation. 7 U.S.C. § 25(a)(1). To establish “actual damages” a plaintiff must show an “actual injury caused by the violation,” In re LI-BOR-Based Fin. Instruments Antitrust Litig. (LIBOR II), 962 F.Supp.2d 606, 620 (S.D.N.Y. 2013) (quoting Ping He (Hai Nam) Co. v. NonFerrous Metals (U.S.A.) Inc., 22 F.Supp.2d 94, 107 (S.D.N.Y. 1998), vacated on other grounds, 187 F.R.D. 121 (S.D.N.Y. 1999)). Where, as here, CEA claims are based on discrete, episodic instances of manipulation, plaintiffs must allege that they “engaged in a transaction at a time during which prices were artificial as a result of defendants’ alleged ... manipulative conduct, and that the artificiality was adverse to their position.” Id. at 622. The Fixing Members argue that Plaintiffs lack CEA standing because Plaintiffs fail to allege that they transacted in the “moments immediately before and after the Silver Fix.” Defs.’ Mem. at 45. But Plaintiffs allege that the effects of Defendants’ manipulation persisted beyond the Fixing window. SAC ¶¶ 173-76 & Figs. 33-34. While the Fixing Members correctly point out that Plaintiffs’ allegations of “persistence” are in tension with their allegations that the Fixing marked a uniquely dysfunctional period of the trading day, Defs.’ Mem. at 45, they are not necessarily incompatible. Viewing the allegations in the light most favorable to the Plaintiffs, the Court could find that the Plaintiffs have adequately alleged that, on days that Defendants engaged in manipulation, the Fixing marked an abrupt downward aberration in pricing, which abated gradually, but perhaps not completely, over time. Under such circumstances, allegations that Plaintiffs sold a particular quantity of silver futures on specifically identified dates when Defendants are" }, { "docid": "12308739", "title": "", "text": "akin to a claim of \"insider trading,” and even if they were, the Fixing Members have not argued that the facts, viewed in the light most favorable to the Plaintiffs, demonstrate that the Fixing Members were trading on information that was \"lawfully obtained.” . The SAC’s relatively thin principal-agent allegations reflect in part the posture of this case. None of the Jane Doe defendants, presumably employees of the Fixing Members, has been identified, and there has been no document discovery. Assuming this case reaches the summary judgment stage. Plaintiffs will be required to adduce significantly more evidence establishing that agents of the Fixing Members violated the CEA and did so acting within the scope of their employment. . The first Interim Lead Plaintiffs filed a complaint in this action on July 25, 2014. See Complaint, Nicholson v. Bank of Nova Scotia, No. 14-cv-5682 (VEC) (S.D.N.Y. July 25, 2014) (Dkt. 1). . Defendants argue that Plaintiffs cannot claim ignorance of the alleged manipulation because four of the named Plaintiffs filed class action lawsuits in 2010 and 2011 against HSBC and others for suppressing silver prices. Defs.’ Mem. at 49 n.34. As with the 2008 CFTC investigation, however, those complaints involved substantially different misconduct, which apart from alleging price suppression, had nothing to do with the manipulation of the Silver Fixing alleged here. . Defendants’ argument that the Plaintiffs were on inquiry notice due to obvious \"red flags” regarding the lack of accountability and oversight over the Silver Fixing is misplaced. Defs.' Mem. at 48. Just as these structural factors were not sufficient to constitute \"plus factors” in support of Plaintiffs’ con spiracy claims, neither are they sufficient to put Plaintiffs on inquiry notice. . Notably, Plaintiffs do not claim to be clients of UBS who suffered losses as a result of UBS front-running their orders or trigger-mg their stop loss orders. See UBS FINMA Report at 12. Rather Plaintiffs allege that they \"suffered harm in the sales they conducted on days where the price of silver was artificially lower because of Defendants’ manipulative conduct” in artificially suppressing the price of silver" } ]

[ { "docid": "469345", "title": "", "text": "of nature or otherwise fantastic, or irreconcilably in conflict with indubitable documentary or physical evidence, stipulations of fact, admissions, or evidence of equivalent certainty. See Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). None of these circumstances is present in this case. Even if we could say that Lehner was lying, this would not carry the day for Bullard-indeed, might advance his case very little. Lehner was not an employee o Sercon. Since his employer, Bethlehem Steel Corporation, is not a defendant, we need not decide whether Bethlehem might have been the indirect employer of both Lehner and Bullard and hence both a proper defendant in a Title VII suit (see the discussion of that issue in Shrock v. Altru Nurses Registry, 810 F.2d 658, 660 (7th Cir.1987)) and one chargeable with responsibility for Lehner's conduct. Whether Lehner had good or bad, racist or innocent, reasons for choosing Bullard to lay off when it became necessary to lay off a member of the crew at the coke ovens, the layoff of Bullard was beyond Sercon's control. Sercon's culpability, if any, depends on what it did when confronted by Lehner's action. Sercon apparently was doing other work at Bethlehem's Burns Harbor plant that Bullard could have been assigned to; if the reason, or a reason, for not assigning him-for instead placing him on permanent layoff status-was that he was black, Ser-con was guilty of racial discrimination. Bullard argues that since there is no evidence that Sercon itself regarded him as a slow or otherwise substandard worker, its failure to reassign him to work elsewhere in the plant when Lehner ejected him from the coke ovens must have been based on his race. But this is a non sequi-tur. The fact that a black worker is fired or laid off without good cause does not establish racial discrimination. It may in some cases be evidence of discrimination, see, e.g., Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 559 (7th Cir.1987); cf. Graefenhain v. Pabst Brewing Co., 827 F.2d 13, 18 (7th" } ]

[ { "docid": "232848", "title": "", "text": "684 F.2d 769, 773 (11th Cir.1982). The district court found that Zaklama failed to prove that he was discharged by Mt. Sinai or one of its agents. The court stressed that it was Jackson Memorial that operated the residency program and employed Zaklama, not Mt. Sinai. The district court stated: Even if plaintiff was discharged by Jackson as a result of adverse recommendations by Mt. Sinai physicians defendant would not be liable. The statute under which plaintiff sought relief makes it “unlawful ... for an employer to discharge any individual ... because of such individual’s ... religion ... or national origin.” The subject statute does not make it unlawful to make recommendations to an employer upon which a discharge might be based. The district court reads Title VII and section 1981 too narrowly. While it is true that it was Jackson Memorial that discharged Zaklama from the residency program, it does not follow that Mt. Sinai is immune from liability. Title VII makes it unlawful for an employer to: fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(l) (emphasis added). It is clear from the language of the statute that Congress intended that the rights and obligations it created under Title VII would extend beyond the immediate employer-employee relationship. In Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973), the District of Columbia Circuit faced a situation somewhat analogous to the one presented here. That case involved allegations by a self-employed male nurse that a hospital had refused to refer him to female patients in need of nursing services. Despite the absence of an employment relationship with the hospital, the plaintiff brought an action against the hospital under Title VII. In finding that the plaintiff had stated a claim the court of appeals held that parties other than a plaintiff’s actual or potential employer could be liable under Title VII if they control the plaintiff's access" }, { "docid": "22955116", "title": "", "text": "employer may not discriminate against a “qualified individual with a disability ... in regard to” specified enumerated aspects of employment. 42 U.S.C. § 12112(a). A number of cases, although not in this circuit, have interpreted analogous provisions of Title VII to apply to actions taken by a defendant against a plaintiff who is not technically an employee of that employer. For example, in Sibley Memorial Hospital v. Wilson, 488 F.2d 1338, 1341 (D.C.Cir.1973), the court applied Title VII to a hospital which refused to assign a private male nurse to female patients even though the nurse was technically not an employee of the hospital but was an employee of a particular patient. We do not want to be understood as holding at this time that there is automatic coverage wherever one who is an employer of a requisite number of persons takes some action that affects the employee of another entity; a great deal may depend on circumstances. At the same time, we think it premature to rule out the possibility that when additional facts are developed, a claim under Title I analogous to that in Sibley might be made out. See also Christopher v. Stouder Memorial Hospital, 936 F.2d 870, 875 (6th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 658, 116 L.Ed.2d 749 (1991) (interpreting Title VII, court stated that “a plaintiff is protected if the'defendant is one who significantly affects access of any individual to employment opportunities”) (internal quotations and citations omitted); Doe on Behalf of Doe v. St. Joseph’s Hosp., 788 F.2d 411, 422 (7th Cir.1986) (argument that plaintiff is not an employee of defendant employer is not disposi-tive under Title VII because “[t]here are no indications that [language proscribing discrimination by an employer against] ‘any individual’ should be read to mean only an employee of an employer”). Plaintiffs alleged that defendants were “covered entities” for purposes of the ADA. Because the district court prematurely dismissed plaintiffs’ complaint without affording them an opportunity to address the issues upon which the district court relied for its dismissal, the record is not sufficiently complete for us to determine" }, { "docid": "1758182", "title": "", "text": "not an employee of the hospital and, thus, was an independent contractor — would have effected precisely the opposite result from that reached in Doe’s majority opinion. On the other hand, it could be argued that a physician who enjoys hospital staff privileges does, under certain factual situations, share an indirect employer-employee relationship with the hospital sufficient to invoke Title VII protection. Cf. Shrock v. Altru Nurses Registry, 810 F.2d 658, 660 (7th Cir.1987) (implying that Doe and Sibley may be factually distinguishable from the rule that Title VII does not cover independent contractors in that there may be an “indirect employer-employee relationship” between the hospital and the physician or nurse). Dr. Alexander attempted just this at summary judgment by arguing that on the basis of the undisputed facts, he was an employee of Rush North Shore as a matter of law. Dr. Alexander’s claim, however, is untenable in light of our employee/independent contractor analysis in Ost. There, we applied a common law test, which “involves the application of the general principles of agency to the facts,” Knight, 950 F.2d at 378, in order to determine whether Ost, a limousine driver, was an employee of the dispatching company or an independent contractor. Ost, 88 F.3d at 437-38. The test requires us to focus on five factors: (1) the extent of the employer’s control and supervision over the worker, including directions on scheduling and performance of work, (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace, (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations, (4) method and form of payment and benefits, and (5) length of job commitment and/or expectations. Ost, 88 F.3d at 438 (quoting Knight, 950 F.2d at 378-79). “Of [the] several factors to be considered, the employer’s right to control is the most important when determining whether an individual is an employee or an independent contractor.” Knight, 950 F.2d at 378; accord Ost, 88 F.3d at 438. Thus, “[i]f an employer has the right to control and direct the" }, { "docid": "1758179", "title": "", "text": "basis of her membership in a protected class. 788 F.2d at 422-23 (relying on Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973), and Puntolillo v. New Hampshire Racing Comm’n, 375 F.Supp. 1089 (D.N.H.1974)). The partial dissent argued that it was impossible for the hospital to have interfered with Doe’s employment opportunities because, under the common law meaning of “employee,” Doe was not employed by her patients any more than she was employed by the hospital. Doe, 788 F.2d at 427 (Ripple, J., concurring in part and dissenting in part). The partial dissent maintained that Doe was instead an independent contractor and, thus, that she was precluded from bringing her suit against the hospital because she did not fall under Title VII’s protection. Id. To this, the majority responded that perhaps the common law employee/independent contractor dichotomy was inappropriate as applied to antidiscrimination legislation. Id. at 424-25 & n. 28. The majority concluded that dismissal of Doe’s claim was inappropriate even though she could not demonstrate an employer-employee relationship with either her patients or the hospital, so long as she could show that the hospital interfered in some way with her economic possibilities. Id. at 425. Doe’s conceptual underpinnings, however, can no longer hold fast after our more recent decisions in Knight v. United Farm Bureau Mut. Ins. Co., and Ost v. West Suburban Travelers Limousine, Inc. The Knight case concerned an insurance agent who brought a Title VII sex discrimination action against the insurance company with which she was affiliated. 950 F.2d at 377. Similarly, Ost involved an airport limousine driver who brought a Title VII sex discrimination claim against her dispatching company after the company terminated its business relationship with her. 88 F.3d at 436. In deciding both Knight and Ost, we looked — contrary to Doe’s assertion that the common law employee/independent contractor framework is inapplicable to a Title VII action — to whether under a test of common law agency principles the plaintiff was an employee of the defendant or an independent contractor. Knight, 950 F.2d at 378-81; Ost, 88 F.3d at 437-40. We then affirmed" }, { "docid": "1346072", "title": "", "text": "Congress an intention to ere- ate, by language not at all suggestive of any such intention, aider and abettor liability of one employer to the employees of another employer. Id. The court distinguished such “aiding and abetting” cases from cases such as Sibley, where the defendant, though not the plaintiffs employer, nevertheless has such a degree and range of control over the plaintiff that it is the plaintiffs defacto or indirect employer. Id. In cases involving a defacto employer, the relationship of the parties should be regarded as an employment relationship and the provisions of the ADEA should apply to the de facto employer. Id. A de facto employment theory, the court noted, is a more limited and tenable theory than an “aiding and abetting” theory which would impose liability on any employer who adversely affects a plaintiffs employment with a third party. Id. This court finds the reasoning of the Seventh Circuit both persuasive and consistent with the Third Circuit’s position that the lack of an employment relationship between the plaintiff and the defendant will preclude liability under Title VII. See School District of Philadelphia, 911 F.2d at 891. It is also similar to the line drawn by the Ninth Circuit, which has subjected a defendant to the provisions of Title VII based on the degree of control it exerted over the hiring and supervision of the employer’s employees. See Ass’n of Mexicart-American Educators v. California, 231 F.3d 572, 582 (9th Cir.2000). Therefore this court holds that, in order to state a claim under the ADEA, a plaintiff must allege an actual or de facto employment relationship — past, present or prospective — with the defendant. In the present matter, Tyrrell has alleged only that he was a student at HACC. A community college does not have such control over a student’s work life that it can be considered his de facto employer. See Mangram v. General Motors, 108 F.3d 61 (4th Cir.1997) (distinguishing employees from students in a training program). Consequently, Tyrrell’s ADEA claim against HACC must be dismissed for failure to state a claim upon which relief" }, { "docid": "1346066", "title": "", "text": "“employees”). Consequently, it remains uncertain whether an employee may bring suit under section 623(a) against an employer other than his own. This issue is also unsettled in the parallel Title VII context. In a leading case, the District of Columbia Circuit held that any employer possessing control over the plaintiffs access to employment with a third party may be liable under Title VII: [I]t would appear that Congress has determined to prohibit [an employer] from exerting any power it may have to foreclose, on invidious grounds, access by any individual to employment opportunities otherwise available to him. To permit a covered employer to exploit circumstances peculiarly affording it the capability of discriminatorily interfering with an individual’s employment opportunities with another employer, while it could not do so with respect to employment in its own service, would be to condone continued use of the very criteria for employment that Congress has prohibited. Sibley Memorial Hospital v. Wilson, 488 F.2d 1338, 1341 (D.C.Cir.1973). Sibley involved a nurse who was paid directly by his patients but whose conduct and ability to secure clients were under the control of the defendant hospital. Id. A number of courts have followed Sibley, finding Title VII applicable wherever a defendant employer has control over the plaintiffs access to employment, even where the plaintiff is not employed by the defendant, but by a third party. See, e.g., Zaklama v. Mt. Sinai Medical Center, 842 F.2d 291, 294 (11th Cir.1988) (endorsing Sibley); Hudson v. Radnor Valley Country Club, 1996 WL 172054, *4 (E.D.Pa.) (“A Title VII plaintiff may sue a defendant with whom he had no actual or prospective employment relationship if that defendant controlled the plaintiffs access to employment and then foreclosed that employment by unlawfully discriminating against the plaintiff.”) However, it does not appear that the Third Circuit has adopted Sibley’s expansive construction of the term “employer.” In United States v. Bd. of Educ. for the Sch. Dist. of Philadelphia, 911 F.2d 882, 891 (3d Cir.1990), the Third Circuit held that the Commonwealth of Pennsylvania was not an “employer” of public school teachers — and hence was" }, { "docid": "1758181", "title": "", "text": "the district court judgments against the plaintiffs in both eases, announcing the rule — contrary to Doe’s holding that a doctor can maintain a Title VII action even if he is an employee of neither the hospital nor his own patients— that a plaintiff “must prove the existence of an employment relationship in order to maintain a Title VII action against [the defendant],” and that “[independent contractors are not protected by Title VIL” Knight, 950 F.2d at 380; accord Ost, 88 F.3d at 440. It was insufficient that United Farm Bureau Mutual Insurance Co. interfered with Knight’s present and potential business opportunities with her clients, or that West Suburban Travelers Limousine, Inc., interfered with Ost’s economic possibilities with her customers. The simple fact that the plaintiffs were not employees, that they could not demonstrate the existence of an employment relationship, rendered them without the ambit of Title VII protection and precluded them from bringing discrimination actions alleging violations of the Act. Application of this rule in Doe — where the plaintiff conceded that she was not an employee of the hospital and, thus, was an independent contractor — would have effected precisely the opposite result from that reached in Doe’s majority opinion. On the other hand, it could be argued that a physician who enjoys hospital staff privileges does, under certain factual situations, share an indirect employer-employee relationship with the hospital sufficient to invoke Title VII protection. Cf. Shrock v. Altru Nurses Registry, 810 F.2d 658, 660 (7th Cir.1987) (implying that Doe and Sibley may be factually distinguishable from the rule that Title VII does not cover independent contractors in that there may be an “indirect employer-employee relationship” between the hospital and the physician or nurse). Dr. Alexander attempted just this at summary judgment by arguing that on the basis of the undisputed facts, he was an employee of Rush North Shore as a matter of law. Dr. Alexander’s claim, however, is untenable in light of our employee/independent contractor analysis in Ost. There, we applied a common law test, which “involves the application of the general principles of agency to" }, { "docid": "2276319", "title": "", "text": "plaintiff can prove no set of facts which would entitle him to relief.” Id. Chrysler and King agree that even though Chrysler is not King’s actual employer, in some circumstances King could maintain a Title VII action against Chrysler. The dispute here centers on whether this case presents such a circumstance. Chrysler contends that if it does not have an “employment relationship” with King, she cannot bring this action against it. Chrysler suggests that the test in this instance is an inquiry into the relationship between King’s actual employer, Canteen, and Chrysler and whether the Court may treat the two separate corporations as a single employer for purposes of Title VII liability. To that end, the Court should allegedly consider whether Canteen and Chrysler have interrelated operations, common management, centralized control of labor relations and common ownership or financial control. Upon reviewing the many cases in this area, the Court concludes that in this instance King need not have an employment relationship with Chrysler, particularly as determined by the four-part test that Chrysler advances, in order to maintain this action. Many courts reject the notion that Title VII requires a certain type of relationship between the defendant and a plaintiff suing under 42 U.S.C. § 2000e-2(a)(l). See Pardazi v. Cullman Medical Ctr., 838 F.2d 1155, 1156 (11th Cir.1988) (interfering with employment opportunity with third party suffices); Doe ex rel. Doe v. Saint Joseph’s Hosp., 788 F.2d 411, 422-25 (7th Cir.1986) (particularly at pleading stage the absence of an employment relationship is not dispositive); Gomez v. Alexian Bros. Hosp., 698 F.2d 1019, 1021 (9th Cir.1983) (allowing claim to proceed even if plaintiff remains employed by his employer when defendant’s discriminatory decision to reject employer’s contract proposal causes plaintiff to lose opportunity to work as a director at defendant’s hospital); Sibley Memorial Hosp. v. Wilson, 488 F.2d 1338, 1340-43 (D.D.C.1973); but see Rivas v. Federacion de Asociacions Pecuarias, 929 F.2d 814 (1st Cir.1991) (Age Discrimination in Employment Act case). Title VII makes it an unlawful employment practice for an “employer ... to fail or refuse to hire or to discharge any individual," }, { "docid": "14863606", "title": "", "text": "of any individual to employment opportunities.” Doe v. St. Joseph’s Hosp., 788 F.2d 411, 422-25 (7th Cir.1986) (doctor stated a claim under Title VII when hospital denied staff privileges even though doctor was not an employee of the hospital); Gomez v. Alexian Bros. Hosp., 698 F.2d 1019, 1021 (9th Cir.1983) (finding a cause of action under Title VII when “ ‘a defendant subject to Title VII interferes with an individual’s employment opportunities with another employer.’ ”) (quoting Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 n. 3 (9th Cir.1980)). The trial court in this case relied on the D.C. Circuit’s decision in Sibley Mem. Hosp. v. Wilson, 488 F.2d 1338 (D.C.Cir.1973) to find that it had jurisdiction over Christopher’s suit. Sibley Mem. Hosp. concerned a sex discrimination claim under Title VII by a private duty nurse against a hospital. The basis of the plaintiff’s claim was that the hospital’s Nursing Office would not refer the nurse, who was a male, to female patients who requested a private duty nurse. This action by the hospital was in contravention of its own policy of referring patients to the next available private nurse in its register. The defendant hospital moved to dismiss on the ground that the plaintiff was not in an employer-employee relationship with the hospital and therefore the court did not have jurisdiction to hear the claim. However, the district court found that the plaintiff stated a claim under Title VII and the D.C. Circuit affirmed. In its Sibley Mem. Hosp. opinion, the court began by pointing out that “The Supreme Court has said that the Congressional objective in Title VII is ‘plain from the language of the statute,’ and that it is ‘to achieve equality of employment opportunities[.] ’ ” Id. at 1340-41 (emphasis original) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 429, 91 S.Ct. 849, 852, 28 L.Ed.2d 158 (1969)). The court then reasoned that in certain circumstances control over access to employment may reside in organizations outside the regular employer-employee relationship. Id. at 1341. The court found it significant that Title VII explicitly applies" }, { "docid": "1758178", "title": "", "text": "to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). The Doe majority opined that because this section expressly applies to “any individual” rather than to “any employee,” interpretively restricting the Act’s protection to only former, present, and potential employees would be inconsistent with our charge to construe Title VII “liberally so as to further the goals and purposes of eliminating discrimination in employment.” Id. at 422 (quoting Unger v. Consolidated Foods Corp., 657 F.2d 909, 915 n. 8 (7th Cir.1981), vacated on other grounds, 456 U.S. 1002, 102 S.Ct. 2288, 73 L.Ed.2d 1297 (1982)). Given that the Act outlaws employer discrimination against “any individual” with respect to his “privileges of employment,” the Doe majority held that Doe needed only to show that the hospital met the statutory definition of an “employer” and that it interfered with her present or future employment opportunities on the basis of her membership in a protected class. 788 F.2d at 422-23 (relying on Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973), and Puntolillo v. New Hampshire Racing Comm’n, 375 F.Supp. 1089 (D.N.H.1974)). The partial dissent argued that it was impossible for the hospital to have interfered with Doe’s employment opportunities because, under the common law meaning of “employee,” Doe was not employed by her patients any more than she was employed by the hospital. Doe, 788 F.2d at 427 (Ripple, J., concurring in part and dissenting in part). The partial dissent maintained that Doe was instead an independent contractor and, thus, that she was precluded from bringing her suit against the hospital because she did not fall under Title VII’s protection. Id. To this, the majority responded that perhaps the common law employee/independent contractor dichotomy was inappropriate as applied to antidiscrimination legislation. Id. at 424-25 & n. 28. The majority concluded that dismissal of Doe’s claim was inappropriate even though she could not demonstrate an employer-employee relationship with either her patients or the" }, { "docid": "6063830", "title": "", "text": "McMillen stating, “This is a pro se complaint which should never have been filed, and defendant is probably entitled to attorney’s fees under 42 U.S.C. § 1988.” Altru moved for an award of attorney’s fees, but by then Judge McMillen had resigned from the bench, and the case was assigned to Judge Plunkett, who denied the motion without any statement of reasons. Shrock appeals from the dismissal of his suit and Altru cross-appeals from the denial of its motion for an award of attorney’s fees. Unless Altru in 1983 was an employer, an employment agency, or a labor union, it cannot be liable to Shrock under Title VII. See 42 U.S.C. §§ 2000e-2, e-3. Of course it was not a labor union. And it was neither Shrock’s employer — he, clearly, was an independent contractor — nor the employer of the other nurses registered with it, and with all these excluded Altru did not have enough employees to be an employer in the special sense in which Title VII uses this word. See 42 U.S.C. § 2000e(b). We therefore need not decide when, if ever, an employer covered by the statute can be held liable for conduct toward someone who is not its employee; but we note in passing that Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir. 1973), and Doe v. St. Joseph’s Hospital, 788 F.2d 411, 421-25 (7th Cir.1986), cases which support liability for interference by hospitals on grounds of sex (or other grounds deemed discriminatory by Title VII) with their patients’ retaining a nurse or doctor, are distinguishable. They involve an indirect employer-employee relationship between the hospital and the nurse (or doctor); there is no such relationship between a referral agency and the workers it refers. That leaves the question whether Altru was an employment agency. It was if it “regularly [undertook] ... to procure employees for an employer or to procure for employees opportunities to work for an employer.” 42 U.S.C. § 2000e(c) (emphasis added). The reference is to the statutory definition of employer. Since — according to affidavits that Shrock failed to rebut in" }, { "docid": "232849", "title": "", "text": "to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(l) (emphasis added). It is clear from the language of the statute that Congress intended that the rights and obligations it created under Title VII would extend beyond the immediate employer-employee relationship. In Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973), the District of Columbia Circuit faced a situation somewhat analogous to the one presented here. That case involved allegations by a self-employed male nurse that a hospital had refused to refer him to female patients in need of nursing services. Despite the absence of an employment relationship with the hospital, the plaintiff brought an action against the hospital under Title VII. In finding that the plaintiff had stated a claim the court of appeals held that parties other than a plaintiff’s actual or potential employer could be liable under Title VII if they control the plaintiff's access to employment and deny that access based on unlawful criteria. 488 F.2d at 1342. The court stated: Control over access to the job market may reside, depending upon the circumstances of the case, in a labor organization, an employment agency, or an employer as defined in Title VII; and it would appear that Congress has determined to prohibit each of these from exerting any power it may have to foreclose, on invidious grounds, access by any individual to employment opportunities otherwise available to him. To permit a covered employer to exploit circumstances peculiarly affording it the capability of discriminatorily interfering with an individual’s employment opportunities with another employer, while it could not do so with respect to employment in its own service, would be to condone continued use of the very criteria for employment that Congress has prohibited. Id. at 1341. This court and other courts have followed Sibley. Pardazi v. Cullman Medical Center, 838 F.2d 1155 (11th Cir.1988). In Doe v. St. Joseph’s Hospital, 788 F.2d 411 (7th Cir.1986), the defendant hospital had suspended" }, { "docid": "6063831", "title": "", "text": "§ 2000e(b). We therefore need not decide when, if ever, an employer covered by the statute can be held liable for conduct toward someone who is not its employee; but we note in passing that Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir. 1973), and Doe v. St. Joseph’s Hospital, 788 F.2d 411, 421-25 (7th Cir.1986), cases which support liability for interference by hospitals on grounds of sex (or other grounds deemed discriminatory by Title VII) with their patients’ retaining a nurse or doctor, are distinguishable. They involve an indirect employer-employee relationship between the hospital and the nurse (or doctor); there is no such relationship between a referral agency and the workers it refers. That leaves the question whether Altru was an employment agency. It was if it “regularly [undertook] ... to procure employees for an employer or to procure for employees opportunities to work for an employer.” 42 U.S.C. § 2000e(c) (emphasis added). The reference is to the statutory definition of employer. Since — according to affidavits that Shrock failed to rebut in the manner prescribed by Fed.R.Civ.P. 56 — Altru refers nurses only to individual patients and to persons (mainly doctors) acting on behalf of individual patients, and since neither patient nor doctor is a Title VII employer, the district court was unquestionably correct in granting Altru’s motion for summary judgment and dismissing the complaint. We turn to the cross-appeal. In light of Judge McMillen’s statement that Altru was probably entitled to an award of attorney’s fees (not under 42 U.S.C. § 1988, though, for that statute does not apply to Title VII, but under 42 U.S.C. § 2000e-5(k), a materially identical provision), Judge Plunkett’s action in denying, without any statement of reasons, the modest award requested ($2,524.50) puzzles us. The fact that Shrock was a Title VII plaintiff would not automatically disentitle Altru to an award of attorney’s fees; a defendant in a Title VII suit is entitled to such an award if the plaintiff’s suit is “frivolous, unreasonable, or without foundation.” Christians-burg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54" }, { "docid": "22123205", "title": "", "text": "suggests that the “individual” it references is a potential, current, or past employee of the employer. That is the typical Title VII case. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986); Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). However, in a line of cases beginning with Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973), many courts — including this one — have extended Title VII liability to employers who dis-eriminatorily interfere with an individual’s employment relationship with a third party. See id. at 1341; see also Gomez v. Alexian Bros. Hosp., 698 F.2d 1019, 1021 (9th Cir.1983). To extend Title VII’s reach in this way requires not only an unnatural reading of the statute, but also a dubious inference about Congress’ intent in enacting it. If Congress had intended to create liability for interference with third-party employment relationships, there is no discernable reason why it would have limited that liability to “employers,” as defined in Title VII. See, e.g., Ehret v. Louisiana, 862 F.Supp. 1546, 1550 (E.D.La.1992) (voluntary association of river pilots that interfered with third party employment relationship not subject to Sibley liability because it was not an “employer”). As the Seventh Circuit has noted: It might be a good idea to impose liability on those who aid or abet violations of [anti-discrimination laws such as Title VII], but what sense would it make to confine that liability to persons or firms that happen to be employers? Since it would make very little sense that we can see, ... we find it implausible to impute to Congress an intention to create, by language not at all suggestive of any such intention, aider and abettor liability of one employer to the employees of another employer." }, { "docid": "22123118", "title": "", "text": "or privileges of employment, because of such individual’s race, color, religion, sex, or national origin[J 42 U.S.C. § 2000e-2(a)(l). Title VII applies “to governmental and private employers alike.” Dothard v. Rawlinson, 433 U.S. 821, 332 n. 14, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). Plaintiffs and Defendants do not have a direct employment relationship. Rather, Plaintiffs are employees and potential employees of individual school districts in California. That fact does not end our inquiry, however. A direct employment relationship is not a prerequisite to Title VII liability. Although “there must be some connection with an employment relationship for Title VII protections to apply,” that “connection with employment need not necessarily be direct.” Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 (9th Cir.1980). Among other things, we have held that an entity that is not the direct employer of a Title VII plaintiff nevertheless may be liable if it “ ‘interferes with an individual’s employment opportunities with another employer.’ ” Gomez v. Alexian Bros. Hosp., 698 F.2d 1019, 1021 (9th Cir.1983) (quoting Lutcher, 633 F.2d at 883 n. 3). In Gomez, we held that the defendant hospital could be held liable under Title VII for its discriminatory treatment of the plaintiff, notwithstanding the fact that the plaintiff was employed by a third party, if the defendant had interfered with the plaintiffs employment by that third party. See id. at 1021. In so holding, we followed the opinion of the District of Columbia Circuit in Sibley Memorial Hospital v. Wilson, 488 F.2d 1338, 1340-41 (D.C.Cir.1973). In Sibley, the plaintiff was a male private-duty nurse. When a patient in the defendant hospital requested a private nurse, the hospital arranged through a registry service to have a private nurse provided. That nurse attended the patient at the hospital, but was paid directly by the patient. The plaintiff alleged that the defendant allowed male nurses like him to attend male patients only, but allowed female nurses to attend both male and female patients. See id. at 1339-40. The D.C. Circuit concluded that the defendant could be held liable under Title VII even though" }, { "docid": "347035", "title": "", "text": "the ADEA for the Agency Defendants, Plaintiffs assert that, even if Agency Defendants are not employers or employment agencies, they are liable because their alleged refusal to refer older writers for employment interferes with Plaintiffs’ employment opportunities. Plaintiffs’ argument is premised on the holdings in The Ass’n of Mexican-American Educators (“AMAE\") v. California, 231 F.3d 572 (9th Cir.2000) and Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973). These cases stand for the proposition that an entity may be liable under Title VII even if it is not a direct employer of the plaintiff, if it “interferes with an individual’s employment opportunities with another employer.” AMAE, 231 F.3d at 580 (quoting Gomez v. Alexian Bros. Hospital, 698 F.2d 1019, 1021 (9th Cir.1983)). In order for such liability to exist, however, the entity must have “actual ‘[c]ontrol over access to the job market.’ ” AMAE at 581 (quoting Sibley, 488 F.2d at 1341). In AMAE, the Ninth Circuit held that Title VII applied to the State of California, even though it was not the direct employer of the local school district, because of the level of control it exerted over the school district. In particular, California administers an allegedly discriminatory statewide examination, which all teachers must pass before being allowed to teach in California public schools. In Sibley, the court held that a hospital was liable for sex discrimination under Title VII for its refusal to refer a private male nurse for employment with female patients. The court described the employment structure of private nurses in the District of Columbia as follows: “[H]ospi-tal patients who require the services of a private nurse ask the Nursing Office of the hospital to communicate their need to one of the registries operating in the District ... When a patient at [defendant hospital] makes such a request, he or she is informed that neither the hospital nor the registry to which it will refer the offer of employment can discriminate on the basis of race, age or sex. The patient’s request is telephoned to the Professional Nurses’ Official Registry, which matches the request with the" }, { "docid": "14863605", "title": "", "text": "under this subchapter. 42 U.S.C. § 2000e-3 (emphasis added). While it is true that Christopher was not a direct employee of Stouder, we find that Stouder’s control over Christopher’s ability to practice as a private scrub nurse sufficiently impacted her employment opportunities to bring her claims within the intended scope of § 2000e-3. As the trial court noted, our caselaw requires that “[t]he term ‘employee’ in Title VII ‘must be read in light of the mischief to be corrected and the end to be attained.’ ” J.App. at 70 (Order denying motion for new trial, quoting Armbruster v. Quinn, 711 F.2d 1332, 1340 (6th Cir.1983)). Further, we have repeatedly said that “Title VII of the Civil Rights Act should not be construed narrowly.” Tipler v. E.I. du Pont de Nemours and Co., 443 F.2d 125, 131 (6th Cir.1971). In this spirit, several courts have held that Title VII does not require a formal employment relationship between the plaintiff and the defendant. Rather, a plaintiff is protected if the defendant is one “who significantly affects access of any individual to employment opportunities.” Doe v. St. Joseph’s Hosp., 788 F.2d 411, 422-25 (7th Cir.1986) (doctor stated a claim under Title VII when hospital denied staff privileges even though doctor was not an employee of the hospital); Gomez v. Alexian Bros. Hosp., 698 F.2d 1019, 1021 (9th Cir.1983) (finding a cause of action under Title VII when “ ‘a defendant subject to Title VII interferes with an individual’s employment opportunities with another employer.’ ”) (quoting Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 n. 3 (9th Cir.1980)). The trial court in this case relied on the D.C. Circuit’s decision in Sibley Mem. Hosp. v. Wilson, 488 F.2d 1338 (D.C.Cir.1973) to find that it had jurisdiction over Christopher’s suit. Sibley Mem. Hosp. concerned a sex discrimination claim under Title VII by a private duty nurse against a hospital. The basis of the plaintiff’s claim was that the hospital’s Nursing Office would not refer the nurse, who was a male, to female patients who requested a private duty nurse. This action by the" }, { "docid": "22920080", "title": "", "text": "any individual to employment opportunities, regardless of whether the party may technically be described as an ‘employer’ ... at common law.” Id. at 1063. However, Spirt involved the relationship between an employer and a third-party insurer, not, as here, a relationship between a corporate parent and a corporate subsidiary. See Spirt, 691 F.2d at 1063 (applying the test to hold that the defendants — independent companies that managed the retirement benefits programs for the staff and faculty at Long Island University — could be held liable as employers under Title VII for their alleged discrimination in the computation of benefits). Other circuits have applied Spirt to the independent contractor context. See Carparts Distrib. Ctr. v. Automotive Wholesalers Assoc. of New England, 37 F.3d 12, 17 (1st Cir.1994) (invoking the Spirt test to hold that trade association and trust could be held liable as an employer under the Americans with Disabilities Act for alleged discrimination against employees with AIDS-related conditions); Doe v. St. Joseph’s Hosp., 788 F.2d 411, 424 (7th Cir.1986) (invoking the Spirt test in reversing dismissal of independent contractor physician’s Title VII claim against hospital that revoked her staff privileges); see also Sibley Memorial Hosp. v. Wilson, 488 F.2d 1338, 1340-41 (D.C.Cir.1973) (reversing summary judgment for defendant hospital on claim brought by independent contractor/private nurse for hospital’s refusal to refer patients to him on the ground that “[cjontrol over access to the job market” and “power ... to foreclose ... access by any individual to employment opportunities” are the key criteria in determining potential Title VII liability of employers). Courts of appeals that have addressed the question of parent-subsidiary liability have adopted a flexible four-part test aimed at determining the degree of interrelationship between the two entities. See, e.g., Armbruster v. Quinn, 711 F.2d 1332, 1337 (6th Cir.1983). Thus, the Fifth Circuit has held that [A] parent and subsidiary cannot be found to represent a single, integrated enterprise in the absence of evidence of (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. Garcia v. Elf Atochem North" }, { "docid": "2276320", "title": "", "text": "order to maintain this action. Many courts reject the notion that Title VII requires a certain type of relationship between the defendant and a plaintiff suing under 42 U.S.C. § 2000e-2(a)(l). See Pardazi v. Cullman Medical Ctr., 838 F.2d 1155, 1156 (11th Cir.1988) (interfering with employment opportunity with third party suffices); Doe ex rel. Doe v. Saint Joseph’s Hosp., 788 F.2d 411, 422-25 (7th Cir.1986) (particularly at pleading stage the absence of an employment relationship is not dispositive); Gomez v. Alexian Bros. Hosp., 698 F.2d 1019, 1021 (9th Cir.1983) (allowing claim to proceed even if plaintiff remains employed by his employer when defendant’s discriminatory decision to reject employer’s contract proposal causes plaintiff to lose opportunity to work as a director at defendant’s hospital); Sibley Memorial Hosp. v. Wilson, 488 F.2d 1338, 1340-43 (D.D.C.1973); but see Rivas v. Federacion de Asociacions Pecuarias, 929 F.2d 814 (1st Cir.1991) (Age Discrimination in Employment Act case). Title VII makes it an unlawful employment practice for an “employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l) (emphasis added). The statute does not specify that the employer committing the unlawful employment practice must employ the injured individual. If the Court were to accept Chrysler’s position that it is not a proper defendant, Chrysler could allow a hostile work environment to exist because of the peculiar circumstances of its relationship with Canteen, although it could not do so if King were in its own service. See Sibley, 488 F.2d at 1341. Chrysler cites cases from this circuit and others that refer to the need for an employment relationship, but these cases decide different issues. For example, the statute prohibits interference with plaintiff’s “employment.” Hence, plaintiff must have an employment relationship with some entity, not necessarily defendant. Broussard v. L.H. Bossier, Inc., 789 F.2d 1158, 1160 (5th Cir.1986). Chrysler relies on cases that address whether plaintiff is anyone’s employee, Knight v." }, { "docid": "1346071", "title": "", "text": "strict employment relationship requirement that would immunize from liability the discrimination condemned in Sibley. In EEOC v. State of Illinois, 69 F.3d 167, 169 (7th Cir.1995), the court rejected the proposition that the ADEA applied to “employers” other than the employer of the plaintiff. EEOC v. State of Illinois, 69 F.3d 167, 169 (7th Cir.1995). The court argued that it makes little sense to assume that Congress extended liability only to persons who happen to be employers of third parties, rather than to all persons who improperly exercise control over a plaintiff’s employment: We think it very doubtful that laws which forbid employers to discriminate create a blanket liability to employees of other employers for interference with their employment relationships. It might be a good idea to impose liability on those who aid or abet violation of those laws, but what sense would it make to confine liability to persons or firms who happen to be employers? Since it would make little sense that we can see ..., we find it implausible to impute to Congress an intention to ere- ate, by language not at all suggestive of any such intention, aider and abettor liability of one employer to the employees of another employer. Id. The court distinguished such “aiding and abetting” cases from cases such as Sibley, where the defendant, though not the plaintiffs employer, nevertheless has such a degree and range of control over the plaintiff that it is the plaintiffs defacto or indirect employer. Id. In cases involving a defacto employer, the relationship of the parties should be regarded as an employment relationship and the provisions of the ADEA should apply to the de facto employer. Id. A de facto employment theory, the court noted, is a more limited and tenable theory than an “aiding and abetting” theory which would impose liability on any employer who adversely affects a plaintiffs employment with a third party. Id. This court finds the reasoning of the Seventh Circuit both persuasive and consistent with the Third Circuit’s position that the lack of an employment relationship between the plaintiff and the defendant" } ]

[ { "docid": "18055174", "title": "", "text": "if it determines the record warrants such a ruling in light of this opinion or to allow Nevada Bell’s good faith defense to go to the jury. See Fountila v. Carter, 571 F.2d 487, 489-90 (9th Cir. 1978); Chisholm Brothers Farm Equipment Co. v. International Harvester Co., 498 F.2d 1187, 1140 (9th Cir., cert. denied, 419 U.S. 1023, 95 S.Ct. 500, 42 L.Ed.2d 298 (1974). IV. Appeal of Washoe Officials A. Prosecutorial Immunity The district court correctly concluded that Rose and Hicks did not enjoy the quasi-judicial immunity against suit afforded prosecutors performing quasi-judicial functions. In Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the Supreme Court held a prosecutor immune from a § 1983 suit when respondent’s activities were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force. We have no occasion to consider whether like or similar reasons require immunity for those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate. Id. at 430 — 31, 96 S.Ct. at 995 (footnotes omitted). Although the Supreme Court did not consider immunity for activities which are not quasi-judicial, this court has held that if the prosecutor “committed acts, or authoritatively directed the commission of acts, which ordinarily are related to police activity as opposed to judicial activity, then the cloak of immunity should not protect them.” Robichaud v. Ronan, 351 F.2d 533, 537 (9th Cir. 1965). See Sykes v. California, 497 F.2d 197, 200-01 (9th Cir. 1974). The district judge found that Hicks and Rose acted in an administrative and not a judicial manner. He observed that they did not simply render legal advice to the Sheriff’s office, but instead joined in implementing the wiretap. The district judge noted, for example, that the court order authorized wiretapping by the District Attorney’s Office as well as by the Sheriff’s Office. We believe that the district judge properly concluded that the Imbler immunity did not apply. B. Good" } ]

[ { "docid": "22156474", "title": "", "text": "of evidence. At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court. Drawing a proper line between these functions may present difficult questions, but this case does not require us to anticipate them. Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33. The present case involves us in such a line-drawing process. We will apply, to the best of our ability, the functional test outlined by the Supreme Court in determining whether Catterson’s actions in seeking a seizure warrant are so intimately and inexorably tied to the prosecutorial phase of the judicial process as to warrant the blanket protection that absolute immunity affords. See Harlow, 457 U.S. at 811 & n. 16, 102 S.Ct. at 2734 & n. 16; Imbler, 424 U.S. at 430, 96 S.Ct. at 995. When the prosecutor's conduct consists of purely investigative matters, courts have declined to apply absolute immunity. See Burns, 111 S.Ct. at 1942-45 (no absolute immunity for prosecutor’s giving of advice to police during investigation); Marrero v. City of Hialeah, 625 F.2d 499, 505 (5th Cir.1980) (“a prosecutor who assists, directs or otherwise participates ... in obtaining evidence prior to an indictment undoubtedly is functioning more in his investigative capacity than in his quasi-judicial capacities of ‘deciding which suits to bring and ... conducting them in court’ ”) (quoting Imbler, 424 U.S. at 424, 96 S.Ct. at 992), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981). Although this Court has often stated that a prosecutor is not entitled to absolute immunity when engaged in purely investigative activities, this Court has never been asked to clarify the gray areas between prosecutorial and investigative activity. See, e.g., Mancini v. Lester, 630 F.2d 990, 993 (3d Cir.1980) (per curiam); Helstoski v. Goldstein, 552 F.2d 564, 566 (3d Cir.1977); cf. Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir.1979) (qualified immunity for Attorney General’s decision to authorize war-rantless electronic surveillances during investigation and remand for further fact-finding on entitlement to absolute immunity), cert. denied, 453" }, { "docid": "13660286", "title": "", "text": "decision by the consequences in terms of his own potential liability in a suit for damages”), and to avoid establishing a doctrine that would “discourage prosecutors from dismissing meritless actions before trial, since only by pursuing ... charges would the prosecutor be fully immune,” Haynesworth v. Miller, 820 F.2d 1245, 1270 n. 200 (D.C.Cir.1987). The claimed wrong in the present case, of course, is not the decision to forgo prosecution but rather Lalor’s demand, in exchange for that decision, that plaintiffs execute releases in favor of the policemen and the municipalities. Plaintiffs argue that this demand was an administrative act rather than a prosecutorial act and that Lalor hence can claim at most a qualified immunity. Though the principle is sound, it does not apply to the facts as set forth in plaintiffs’ affidavits. This Court, like other circuits, has indeed held that a prosecutor does not enjoy absolute immunity for acts that are merely administrative rather than prosecutorial, see, e.g., Lawson v. Abrams, 863 F.2d at 263; Lee v. Willins, 617 F.2d 320, 321-22 (2d Cir.), cert. denied, 449 U.S. 861, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); Dellums v. Powell, 660 F.2d 802, 805 (D.C.Cir.1981); Mancini v. Lester, 630 F.2d 990, 992-93 (3d Cir.1980); Jacobson v. Rose, 592 F.2d 515, 524 (9th Cir.1978), cert. denied, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298 (1979), and the Supreme Court “at least implicitly has drawn the same distinction in extending absolute immunity to executive officials when they are engaged in quasi-prosecutorial functions. See Butz v. Economou, 438 U.S. [478, 515-17, 98 S.Ct. 2894, 2915-16, 57 L.Ed.2d 895 (1978)],” Harlow v. Fitzgerald, 457 U.S. 800, 811 n. 16, 102 S.Ct. 2727, 2734 n. 16, 73 L.Ed.2d 396 (1982). See also Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 545, 98 L.Ed.2d 555 (1988) (judge does not have absolute immunity for administrative personnel decisions). We cannot conclude, however, that the conduct complained of here was sufficiently independent of the decision whether or not to prosecute to warrant characterizing the demand for releases as merely administrative. Though a different conclusion might" }, { "docid": "11794545", "title": "", "text": "(1935); ABA Code of Professional Responsibility EC 7-13 (1980). Our system of justice accords the prosecutor wide discretion in choosing which cases should be prosecuted and which should not. If the prosecutor’s personal interest as the defendant in a civil case will be furthered by a successful criminal prosecution, the criminal defendant may be denied the impartial objective exercise of that discretion to which he is entitled. The government contends that prosecutors cannot be disqualified when sued by a defendant because defendants could then remove whichever prosecutor they please simply by suing him. The defendants contend that this is not so because all acts of a prosecutor taken in his quasi-judicial capacity enjoy the protection of absolute immunity, see Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1975), and that therefore any suit complaining of an action taken in a prosecutor’s quasi-judicial capacity would be frivolous and non-disqualifying. In contrast, when a prosecutor actually participates in a search he is engaging in investigative rather than quasi-judicial activity, see Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir. 1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981), and therefore loses his absolute immunity from suit if he actually participates in a search although retaining a qualified, good-faith immunity. This distinction in principle between quasi-judicial and investigative functions persuades us that a criminal defendant cannot routinely remove prosecutors he dislikes, or fears, by suing them. Unless the defendant can complain of some action taken by the prosecutor outside of his quasi-judicial capacity, such suit will generally be barred by absolute immunity. As we held recently: [Ajbsolute immunity does not extend to a prosecutor engaged in essentially investigative or administrative functions. Halperin v. Kissinger, 606 F.2d 1192, 1208 (D.C.Cir.1979), aff’d by an equally divided Court per curiam, 452 U.S. 713 [101 S.Ct. 3132, 69 L.Ed.2d 367] (1981); Briggs v. Goodwin, 569 F.2d 10, 21 (D.C.Cir. 1977), cert. denied, 437 U.S. 904 [98 S.Ct. 3089, 57 L.Ed.2d 1133] (1978); Apton v. Wilson, 506 F.2d 83, 93 (D.C.Cir.1974). However, when a prosecutor is engaged “in initiating" }, { "docid": "23549918", "title": "", "text": "was immune from liability under 42 U.S.C. § 1983, and dismissed the action. We affirm. II. We note at the outset that when a prisoner is challenging his imprisonment in state facilities, his sole federal remedy is a writ of habeas corpus pursuant to 28 U.S.C. § 2254, Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841, 36 L.Ed.2d 439 (1973). Taylor followed this approach in September 1979, seeking a writ in the United States District Court for the Northern District of New York. Judge Port dismissed the petition and denied a certificate of probable cause. Taylor v. Fogg, No. 79-CV-595 (N.D.N.Y. Mar. 21, 1980). Taylor did not appeal this order. Accordingly, we hold that he cannot raise this request to be set free in the instant civil rights action. Taylor’s damages claim also fails because the Assistant District Attorney’s conduct in the plea bargaining negotiations and the sentencing proceeding in state court is protected by the doctrine of absolute prosecutorial immunity. See Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976). Imbler provided the basis for the development of a functional approach to the immunity question. The Court held that absolute immunity from § 1983 liability exists for those prosecutorial activities “intimately associated with the judicial phase of the criminal process ... . ” Id. at 430, 96 S.Ct. at 994; Butz v. Economou, 438 U.S. 478, 510-11, 98 S.Ct. 2894, 2912-13, 57 L.Ed.2d 895 (1978). These protected “quasi-judicial” activities, Forsyth v. Kleindienst, 599 F.2d 1203, 1214-15 (3d Cir. 1979), include the initiation of a prosecution and the presentation of the Government’s case. Imbler, supra, 424 U.S. at 431, 96 S.Ct. at 995. Absolute protection does not extend, however, to a prosecutor’s investigative or administrative acts, id. at 431 n.33, 96 S.Ct. at 995 n.33. Accordingly, we have recognized that where prosecutors act in this capacity, only the qualified “good faith” immunity that protects, for example, police officers, is available. Lee v. Willins, 617 F.2d 320, 321-22 (2d Cir.), cert. denied, - U.S. -, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980);" }, { "docid": "2006362", "title": "", "text": "S.Ct. at 995, 47 L.Ed.2d at 143-144 (\"[w]e have no occasion to consider whether like or similar reasons require immunity for those aspects of the prosecutor’s responsibility that casts him in the role of an administrator or investigative officer rather than that of an advocate\"). . Id. at 430 & n. 31, 96 S.Ct. at 995 & n. 31, 47 L.Ed.2d at 143 & n. 31 (citing Guerro v. Mulheam, 498 F.2d 1249, 1256 (1st Cir.1974); Hampton v. City of Chicago, 484 F.2d 602, 608-609 (7th Cir. 1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974); Robichaud v. Ronan, 351 F.2d 533, 537 (9th Cir.1965)). . Imbler v. Pachtman, supra note 160, 424 U.S. at 431, 96 S.Ct. at 995, 47 L.Ed.2d at 144. . Id. at 431 n. 33, 96 S.Ct. at 995 n. 33, 47 L.Ed.2d at 144 n. 33. . E.g., McSurely v. McClellan, 225 U.S.App. D.C. 67, 77, 697 F.2d 309, 319 (1982); Briggs v. Goodwin, supra note 156, 186 U.S.App.D.C. at 188-189, 569 F.2d at 19-20; Marrero v. City of Hialeah, 625 F.2d 499, 506 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981); Jacobson v. Rose, 592 F.2d 515, 524 (9th Cir.1978), cert. denied, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298 (1979); Rex v. Teeples, 753 F.2d 840, 843 (10th Cir.), cert. denied, — U.S. -, 106 S.Ct. 332, 88 L.Ed.2d 316 (1985). . Gray v. Bell, supra note 160, 229 U.S.App. D.C. at 185-186, 712 F.2d at 499-500. . See generally Note, Supplementing the Functional Test of Prosecutorial Immunity, 34 Stan.L. Rev. 487, 489-504 (1982) (collecting cases). . E.g., McSurely v. McClellan, supra note 176, 225 U.S.App.D.C. at 77, 697 F.2d at 319 (\"a prosecutor receives absolute immunity only when he acts ... in his role as a participant in the judicial phase of the criminal process’’); Taylor v. Kavanagh, 640 F.2d 450, 453 (2d Cir. 1981) (finding plea negotiations are absolutely protected: “[t]he plea negotiation is ‘an essential component’ of our system of criminal justice”) (quoting Santobello v. New York, 404" }, { "docid": "2525376", "title": "", "text": "from suit for “activities intimately associated with the judicial phase of the criminal process.... ” Id, at 430, 96 S.Ct. at 995. Adopting a functional approach, the Court held that the prosecutor, who was alleged to have knowingly used perjured testimony, was immune for conduct “in initiating a prosecution and in presenting the State’s case....” Id. at 431, 96 S.Ct. at 995. Imbler left open, however, the issue whether a prosecutor was entitled to absolute, qualified, or no immunity for investigative acts. Since Imbler, the Third Circuit has indicated that a prosecutor is entitled to only qualified immunity under § 1983 for investigative or administrative acts. See Rose, 871 F.2d at 343; Ross v. Meagan, 638 F.2d 646, 648 (3d Cir.1981); Mancini v. Lester, 630 F.2d 990, 992-94 (3d Cir.1980); Forsyth v. Kleindienst, 599 F.2d 1203, 1214-15 (3d Cir.1979), cert. denied sub nomine Mitchell v. Forsyth, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981). Accord Mitchell v. Forsyth, 472 U.S. 511, 520-24, 105 S.Ct. 2806, 2812-14, 86 L.Ed.2d 411 (1985). In the instant case, although the .Attorney General defendants may have “acted within their official roles as officers of the Department of Law and Public Safety,” Defendants’ Reply Brief in Support of Motion for Summary Judgment at 10, it is clear that they were acting in their investigative capacities. Nothing in the record suggests that defendants were investigating G-69 with the intent to seek an indictment as to him, although they may have been using his information to indict others. The relationship is best characterized as investigative or administrative; the interactions between plaintiffs and defendants were such that defendants are entitled only to qualified immunity. 3. Qualified Immunity With respect to qualified immunity, plaintiff must show that defendants violated some clearly established right. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The Supreme Court further refined Harlow’s clearly established law standard in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987): The operation of this standard, however, depends substantially upon the level of generality at which the relevant “legal" }, { "docid": "22098076", "title": "", "text": "for violating citizens’ federal statutory rights. The court held that absolute immunity generally would not be available in such cases in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Harlow involved a suit against Presidential aides Bryce Harlow and Alexander Butterfield for conspiring to have Fitzgerald discharged from his job with the Air Force. Plaintiff alleged that defendants were civilly liable for violating the first amendment and both 5 U.S.C. § 7211 and 18 U.S.C. § 1505. Although the court mentioned that Barr had granted federal officials absolute immunity from suits at common law, id. at 2733, the court held that federal officials who violate statutory or constitutional rights usually merit only qualified immunity. We therefore hold that Barr does not control the present case and that Hardin’s absolute immunity claim must be evaluated in light of the more recent Supreme Court decisions. The general rule is that executive branch officials are entitled only to qualified immunity save in “those excep tional situations where it is demonstrated that absolute immunity is essential for the conduct of public business.” Butz, 438 U.S. at 507, 98 S.Ct. at 2911. Federal officials seeking absolute immunity “bear the burden of showing that public policy requires an exemption of that scope.” Id. at 506, 98 S.Ct. at 2911; see also Harlow, 102 S.Ct. at 2733, 2735-36. Although the Supreme Court has held that the function of advocating for the conviction of criminal defendants is of such a nature that prosecutors enjoy absolute immunity in discharging that responsibility, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the courts of appeals have generally held that prosecutors acting in their investigative or administrative capacities merit only qualified immunity. See Dellums v. Powell, 660 F.2d 802 (D.C.Cir.1981); Mancini v. Lester, 630 F.2d 990 (3d Cir. 1980); Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981); Lee v. Willins, 617 F.2d 320 (2d Cir.1980), cert. denied, 449 U.S. 861, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); Forsyth" }, { "docid": "22098077", "title": "", "text": "is essential for the conduct of public business.” Butz, 438 U.S. at 507, 98 S.Ct. at 2911. Federal officials seeking absolute immunity “bear the burden of showing that public policy requires an exemption of that scope.” Id. at 506, 98 S.Ct. at 2911; see also Harlow, 102 S.Ct. at 2733, 2735-36. Although the Supreme Court has held that the function of advocating for the conviction of criminal defendants is of such a nature that prosecutors enjoy absolute immunity in discharging that responsibility, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the courts of appeals have generally held that prosecutors acting in their investigative or administrative capacities merit only qualified immunity. See Dellums v. Powell, 660 F.2d 802 (D.C.Cir.1981); Mancini v. Lester, 630 F.2d 990 (3d Cir. 1980); Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981); Lee v. Willins, 617 F.2d 320 (2d Cir.1980), cert. denied, 449 U.S. 861, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981); Jacobson v. Rose, 592 F.2d 515 (9th Cir.1978), cert. denied, 442 U.S. 930, 99-S.Ct. 2861, 61 L.Ed.2d 298 (1979). While the Supreme Court did not accept or reject the validity of this distinction in Imbler, 424 U.S. at 430-31, 96 S.Ct. at 994-995, it appeared willing to endorse the distinction in Harlow. 102 S.Ct. at 2735 n. 16. Since the duty of recommending the hiring or firing of assistant United States attorneys is a classic example of an administrative function, Hardin is not entitled to absolute immunity in this case. This conclusion is buttressed by directly applying the criteria which the Supreme Court has found to be relevant in adjudicating immunity questions. A decision on immunity must be: Predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it. [Imbler, 424 U.S. at 421, 96 S.Ct. at 748.] In addition, this court must consider public policy" }, { "docid": "13660287", "title": "", "text": "(2d Cir.), cert. denied, 449 U.S. 861, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); Dellums v. Powell, 660 F.2d 802, 805 (D.C.Cir.1981); Mancini v. Lester, 630 F.2d 990, 992-93 (3d Cir.1980); Jacobson v. Rose, 592 F.2d 515, 524 (9th Cir.1978), cert. denied, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298 (1979), and the Supreme Court “at least implicitly has drawn the same distinction in extending absolute immunity to executive officials when they are engaged in quasi-prosecutorial functions. See Butz v. Economou, 438 U.S. [478, 515-17, 98 S.Ct. 2894, 2915-16, 57 L.Ed.2d 895 (1978)],” Harlow v. Fitzgerald, 457 U.S. 800, 811 n. 16, 102 S.Ct. 2727, 2734 n. 16, 73 L.Ed.2d 396 (1982). See also Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 545, 98 L.Ed.2d 555 (1988) (judge does not have absolute immunity for administrative personnel decisions). We cannot conclude, however, that the conduct complained of here was sufficiently independent of the decision whether or not to prosecute to warrant characterizing the demand for releases as merely administrative. Though a different conclusion might be warranted if Lalor had done nothing more than prepare releases or had threatened to extend plaintiffs’ detention without threatening to prosecute them, cfi Lee v. Willins, 617 F.2d at 322 (“a prosecutor might not enjoy absolute immunity from suit by a witness who was allegedly threatened and imprisoned to obtain his perjured testimony”), plaintiffs’ description of the events in Lalor’s office is not so limited. According to plaintiffs’ affidavits, Lalor supported his demand for releases by the threat to prosecute. Thus, the demand for releases and the threat to prosecute were interdependent, and we conclude that Lalor is properly viewed as having made a prosecutorial decision, albeit a conditional one. The nature of absolute immunity is such that it attaches to even conditional prosecu-torial decisions, for that immunity “accords protection from ... any judicial scrutiny of the motive for and reasonableness of official action.” Robison v. Via, 821 F.2d at 918. Inquiry into such “circumstantial qualifiers” as the reasonableness of a condition upon which a decision hinged would “lead[] us out of the realm" }, { "docid": "22156475", "title": "", "text": "of advice to police during investigation); Marrero v. City of Hialeah, 625 F.2d 499, 505 (5th Cir.1980) (“a prosecutor who assists, directs or otherwise participates ... in obtaining evidence prior to an indictment undoubtedly is functioning more in his investigative capacity than in his quasi-judicial capacities of ‘deciding which suits to bring and ... conducting them in court’ ”) (quoting Imbler, 424 U.S. at 424, 96 S.Ct. at 992), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981). Although this Court has often stated that a prosecutor is not entitled to absolute immunity when engaged in purely investigative activities, this Court has never been asked to clarify the gray areas between prosecutorial and investigative activity. See, e.g., Mancini v. Lester, 630 F.2d 990, 993 (3d Cir.1980) (per curiam); Helstoski v. Goldstein, 552 F.2d 564, 566 (3d Cir.1977); cf. Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir.1979) (qualified immunity for Attorney General’s decision to authorize war-rantless electronic surveillances during investigation and remand for further fact-finding on entitlement to absolute immunity), cert. denied, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981). Further, no court, to our knowledge, has ever considered prosecutorial immunity in the context of a civil forfeiture. We look for guidance to the decisions of other federal courts granting or denying absolute or qualified immunity to prosecutors seeking search or arrest warrants. There is a conflict among the cases addressing absolute immunity in the context of the prosecutorial decision to seek an arrest or search warrant. See generally Annotation, Immunity of Prosecutor From Suit, 67 A.L.R. Fed. 640 (1984 & Supp.1990). In Joseph v. Patterson, 795 F.2d 549 (6th Cir.1986), cert. denied, 481 U.S. 1023, 107 S.Ct. 1910, 95 L.Ed.2d 516 (1987), the Josephs asserted that the prosecutor’s conduct — making false statements to support a complaint, arrest warrant and a search warrant, participation in an unlawful search, and malicious prosecution — constituted investigative activities not protected by absolute immunity. Id. at 553. The court found that the decision to file a criminal complaint and seek issuance of an arrest warrant were quasi-judicial duties involved" }, { "docid": "16534126", "title": "", "text": "at 994 (checks provided by criminal and ethical sanctions “undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime”); Butz v. Economou, 438 U.S. at 512, 98 S.Ct. at 2913 (“safeguards built into the judicial process tend to reduce the need for private damages actions as a means of controlling unconstitutional conduct”). Cf. Briscoe v. LaHue, 103 S.Ct. at 1121 n. 32 (“[I]n those cases in which the judicial process fails, the public is not powerless to punish misconduct. Like prosecutors and judges, official witnesses may be punished criminally for willful deprivations of constitutional rights____”). . The Imbler Court left open the question “whether like or similar reasons require immunity for those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate.” 424 U.S. at 430-31, 96 S.Ct. at 994-95. This reservation was noted in Butz, 438 U.S. at 511 n. 37, 98 S.Ct. at 2913 n. 37, but never explicitly addressed. Nonetheless, it has been suggested that the functional approach established in Butz fairly compels the conclusion that a prosecutor is not entitled to absolute immunity for conduct outside of his advocatory role. See Marrero v. City of Hialeah, 625 F.2d 499, 506-10 (5th Cir.1980), cert. denied, 450 U.S. 913,101 S.Ct. 1353, 67 L.Ed.2d 337 (1981). Without fully embracing the functional lines that lower courts have drawn in. deciding when prosecutors are and are not entitled to absolute immunity, the Supreme Court has noted that lower courts have uniformly read Imbler not to extend beyond advocatory conduct, Harlow v. Fitzgerald, 102 S.Ct. at 2735 n. 16; see Stepanian v. Addis, 699 F.2d 1046 (11th Cir.1983);’ McSurely v. McClellan, 697 F.2d 309 (D.C.Cir. 1982) (per curiam); Taylor v. Kavanagh, 640 F.2d 450 (2d Cir.1981); Mancini v. Lester, ¿30 F.2d 990 (3d Cir.1980) (per curiam); Marrero v. City of Hialeah, 625 F.2d 499; Daniels v. Kieser, 586 F.2d 64 (7th Cir.1978), cert. denied, 441 U.S. 931, 99 S.Ct. 2050, 60 L.Ed.2d" }, { "docid": "18908012", "title": "", "text": "articulate a precise and general definition of the class of acts entitled to immunity. The decided cases, however, suggest an intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to peform.”). Moreover, “the courts of appeals have generally held that prosecutors acting in their investigative or administrative capacities merit only qualified immunity.” Windsor v. The Tennessean, 719 F.2d 155, 164 (6th Cir.1983) (citing Dellums v. Powell, 660 F.2d 802 (D.C.Cir.1981); Mancini v. Lester, 630 F.2d 990 (3d Cir.1980); Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981); Lee v. Willins, 617 F.2d 320 (2d Cir.), cert. denied, 449 U.S. 861, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981); Jacobson v. Rose, 592 F.2d 515 (9th Cir.1978), cert. denied, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298 (1979)). The distinction has continued to be a pivotal part of immunity analysis in this Circuit. See, e.g., Manion v. Michigan Bd. of Medicine, 765 F.2d 590 (6th Cir.1985); Joseph v. Patterson, 795 F.2d 549 (6th Cir.1986); Grant v. Hollenbach, 870 F.2d 1135 (6th Cir.1989). In accord with this approach, we have recognized that social workers who initiate judicial proceedings against those suspected of child abuse or neglect perform a prosecutorial duty, and so are entitled to absolute immunity. Salyer v. Patrick, 874 F.2d 374 (6th Cir.1989) (family service worker who filed juvenile abuse petition absolutely immune from liability); Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir.1984) (state employees responsible for prosecution of child neglect and delinquency petitions entitled to absolute immunity). Other federal courts have resolved similar problems in the same fashion. See, e.g., Coverdell v. Dept. of Social and Health Services, 834 F.2d 758, 762-64 (9th Cir.1987) (absolute immunity for social worker who obtains ex parte court order directing seizure of child); Malachowski v. City of Keene, 787 F.2d 704, 712 (1st Cir.), cert. denied, 479" }, { "docid": "19709094", "title": "", "text": "that plaintiff has standing to assert such a claim, she has not alleged that the warrantless wiretapping resulted in any injury to Hauptmann. She does not allege that the police overheard any incriminating information, that they passed any information on to Wilentz, or that Wilentz used any such information against Hauptmann at trial. Finally, even assuming that plaintiff had standing and that Hauptmann had been injured by the wiretaps, Wilentz would be entitled to at least qualified immunity on this claim, if not absolute immunity. Investigation is not as clearly “associated with the judicial phase of the criminal process,” Imbler, supra, 424 U.S. at 430, 96 S.Ct. at 995, as decisions about the initiation and presentation of the state’s case are. As noted, supra p. 365, the Supreme Court in Imbler did not delineate the precise boundaries of the prosecutor’s absolute immunity. The Court suggested, however, that although preparation for the initiation of the criminal process and for trial “may require the obtaining, reviewing, and evaluating of evidence,” at some point the prosecutor no doubt functions as an administrator or investigator rather than as an advocate or an officer of the court. Id. at 430-31 & n. 33, 96 S.Ct. at 995 & n. 33. The Third Circuit in Forsyth, supra, 599 F.2d at 1214-15, adopted a functional approach, holding that a prosecutor enjoys absolute immunity when acting in a “quasi-judicial” role, but is entitled only to qualified immunity when acting in an investigative capacity. See also Ross v. Meagan, 638 F.2d 646, 648 (3d Cir.1981); Mancini v. Lester, 630 F.2d 990, 992-93 (3d Cir.1980). A number of other circuits have adopted the same approach. See, e.g., Freeman v. Hittle, 708 F.2d 442 (9th Cir.1983); Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir.1981); Marrera v. City of Hialeah, 625 F.2d 499, 507 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981); Halperin v. Kissinger, 606 F.2d 1192, 1208 (D.C.Cir.1979), aff’d by equally divided Court per curiam, 452 U.S. 713, 101 S.Ct. 3132, 69 L.Ed.2d 367 (1981); Jacobson v. Rose, 592 F.2d 515, 524 (9th" }, { "docid": "23549919", "title": "", "text": "995, 47 L.Ed.2d 128 (1976). Imbler provided the basis for the development of a functional approach to the immunity question. The Court held that absolute immunity from § 1983 liability exists for those prosecutorial activities “intimately associated with the judicial phase of the criminal process ... . ” Id. at 430, 96 S.Ct. at 994; Butz v. Economou, 438 U.S. 478, 510-11, 98 S.Ct. 2894, 2912-13, 57 L.Ed.2d 895 (1978). These protected “quasi-judicial” activities, Forsyth v. Kleindienst, 599 F.2d 1203, 1214-15 (3d Cir. 1979), include the initiation of a prosecution and the presentation of the Government’s case. Imbler, supra, 424 U.S. at 431, 96 S.Ct. at 995. Absolute protection does not extend, however, to a prosecutor’s investigative or administrative acts, id. at 431 n.33, 96 S.Ct. at 995 n.33. Accordingly, we have recognized that where prosecutors act in this capacity, only the qualified “good faith” immunity that protects, for example, police officers, is available. Lee v. Willins, 617 F.2d 320, 321-22 (2d Cir.), cert. denied, - U.S. -, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); see also Hampton v. Hanrahan, 600 F.2d 600, 631-32 (7th Cir. 1979), rev’d in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980) (per curiam). The task of determining whether a particular activity is better characterized as “quasi-judicial” and subject to absolute immunity, or “investigative” and subject to only qualified “good faith” immunity requires more than the mechanical application of labels. An examination of the functional nature of prosecutorial behavior, rather than the status of the person performing the act, is determinative. Imbler, supra, 424 U.S. at 430, 96 S.Ct. at 994; Briggs v. Goodwin, 569 F.2d 10, 21 (D.C.Cir.1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978). Thus, a prosecutor is insulated from liability where his actions directly concern the pre-trial or trial phases of a case. For example, the swearing of warrants to insure a witness’s attendance at trial, Daniels v. Kieser, 586 F.2d 64 (7th Cir. 1978), cert. denied, 441 U.S. 931, 99 S.Ct. 2050, 60 L.Ed.2d 659 (1979), the falsification of evidence" }, { "docid": "18908011", "title": "", "text": "to absolute immunity can at most enjoy the protection of qualified immunity. See Harlow, 457 U.S. at 807, 102 S.Ct. at 2732. In restricting absolute immunity to those functions intimately associated with the judicial process, courts have made use of the distinction between prosecutorial and judicial duties and duties which are administrative or investigatory. Although the Supreme Court has not expressly adopted this distinction, see Imbler, 424 U.S. at 430-31, 431 n. 33, 96 S.Ct. at 994-95, 995 n. 33, the Court has left standing appellate court cases which have utilized it. Id., at 430 n. 31, 96 S.Ct. at 995 n. 31. Recently the Court has recognized that it has “at least implicitly drawn the same distinction” in its cases, Harlow v. Fitzgerald, 457 U.S. 800, 811 n. 16, 102 S.Ct. 2727, 2734 n. 16, 73 L.Ed.2d 396 (1982), and has continued to rely on the distinction in its own immunity analysis. See, e.g., Forrester v. White, 484 U.S. 219, 227,108 S.Ct. 538, 544, 98 L.Ed.2d 555 (1988) (“This Court has never undertaken to articulate a precise and general definition of the class of acts entitled to immunity. The decided cases, however, suggest an intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to peform.”). Moreover, “the courts of appeals have generally held that prosecutors acting in their investigative or administrative capacities merit only qualified immunity.” Windsor v. The Tennessean, 719 F.2d 155, 164 (6th Cir.1983) (citing Dellums v. Powell, 660 F.2d 802 (D.C.Cir.1981); Mancini v. Lester, 630 F.2d 990 (3d Cir.1980); Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981); Lee v. Willins, 617 F.2d 320 (2d Cir.), cert. denied, 449 U.S. 861, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981); Jacobson v. Rose, 592 F.2d 515 (9th Cir.1978), cert. denied, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298 (1979)). The distinction has" }, { "docid": "19709095", "title": "", "text": "functions as an administrator or investigator rather than as an advocate or an officer of the court. Id. at 430-31 & n. 33, 96 S.Ct. at 995 & n. 33. The Third Circuit in Forsyth, supra, 599 F.2d at 1214-15, adopted a functional approach, holding that a prosecutor enjoys absolute immunity when acting in a “quasi-judicial” role, but is entitled only to qualified immunity when acting in an investigative capacity. See also Ross v. Meagan, 638 F.2d 646, 648 (3d Cir.1981); Mancini v. Lester, 630 F.2d 990, 992-93 (3d Cir.1980). A number of other circuits have adopted the same approach. See, e.g., Freeman v. Hittle, 708 F.2d 442 (9th Cir.1983); Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir.1981); Marrera v. City of Hialeah, 625 F.2d 499, 507 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981); Halperin v. Kissinger, 606 F.2d 1192, 1208 (D.C.Cir.1979), aff’d by equally divided Court per curiam, 452 U.S. 713, 101 S.Ct. 3132, 69 L.Ed.2d 367 (1981); Jacobson v. Rose, 592 F.2d 515, 524 (9th Cir.1978), cert. denied, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298 (1979); Atkins v. Lanning, 556 F.2d 485, 488-89 (10th Cir.1977); Guerro v. Mulhearn, 498 F.2d 1249, 1256 (1st Cir.1974); McCray v. Maryland, 456 F.2d 1 (4th Cir.1972). The Supreme Court recently approved Mancini and Forsyth, saying that the Court in Butz v. Economou, 438 U.S. 478, 515-17, 98 S.Ct. 2894, 2915-16, 57 L.Ed.2d 895 (1978), had implicitly drawn the same distinction. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 2735 n. 16, 73 L.Ed.2d 396 (1982). The Third Circuit in Forsyth, supra, considered a claim that the former Attorney General of the United States had authorized warrantless electronic surveillance which resulted in violations of the plaintiffs’ rights. The Attorney General argued that he was absolutely immune from suit on this ground. The Third Circuit, characterizing the Attorney General’s actions as falling within a “gray area,” id. at 1215, stated: We recognize that the decision of the Attorney General, or a prosecuting attorney, to initiate a prosecution is not made in a vacuum." }, { "docid": "14914012", "title": "", "text": "stated that an “interlocutory appeal is not available where the immunity issue turns on disputed questions of fact,” and that our jurisdiction over such an appeal depends on whether, in light of the nature of the asserted immunity defense, the availability of that defense can be decided as a matter of law. 855 F.2d at 958. The availability of a defense of absolute prosecutorial immunity depends on the nature of the acts allegedly performed rather than on the office itself, for, as the district court observed, it is established that prosecutors have absolute immunity for some of their acts but only qualified immunity for others. See, e.g., Robison v. Via, 821 F.2d 913, 918-20 (2d Cir.1987); Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir.1981). With respect to the initiation of a prosecution and other actions “intimately associated with the judicial phase of the criminal process,” the prosecutor enjoys absolute immunity. Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976). On the other hand, no more than a qualified immunity is available with respect to acts of a prosecutor that are administrative or investigative in nature. See Taylor v. Kavanagh, 640 F.2d at 452-53; Lee v. Willins, 617 F.2d 320, 321-22 (2d Cir.), cert. denied, 449 U.S. 861, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); see also Imbler v. Pachtman, 424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33 (“At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court. Drawing a proper line between these functions may present difficult questions, but this case does not require us to anticipate them.”). This Court, while recognizing that “neither Imbler nor Kavanagh purported to draw bright lines between quasi-judicial absolutely immune conduct, on the one hand, and investigative and administrative quali-fiedly immune behavior, on the other,” Powers v. Coe, 728 F.2d 97, 104 (2d Cir.1984), has held that only the qualified immunity defense may be asserted against a claim that a prosecutor has disclosed information or evidence to the" }, { "docid": "16534127", "title": "", "text": "2913 n. 37, but never explicitly addressed. Nonetheless, it has been suggested that the functional approach established in Butz fairly compels the conclusion that a prosecutor is not entitled to absolute immunity for conduct outside of his advocatory role. See Marrero v. City of Hialeah, 625 F.2d 499, 506-10 (5th Cir.1980), cert. denied, 450 U.S. 913,101 S.Ct. 1353, 67 L.Ed.2d 337 (1981). Without fully embracing the functional lines that lower courts have drawn in. deciding when prosecutors are and are not entitled to absolute immunity, the Supreme Court has noted that lower courts have uniformly read Imbler not to extend beyond advocatory conduct, Harlow v. Fitzgerald, 102 S.Ct. at 2735 n. 16; see Stepanian v. Addis, 699 F.2d 1046 (11th Cir.1983);’ McSurely v. McClellan, 697 F.2d 309 (D.C.Cir. 1982) (per curiam); Taylor v. Kavanagh, 640 F.2d 450 (2d Cir.1981); Mancini v. Lester, ¿30 F.2d 990 (3d Cir.1980) (per curiam); Marrero v. City of Hialeah, 625 F.2d 499; Daniels v. Kieser, 586 F.2d 64 (7th Cir.1978), cert. denied, 441 U.S. 931, 99 S.Ct. 2050, 60 L.Ed.2d 659 (1979); Jacobson v. Rose, 592 F.2d 515 (9th Cir.1978), cert. denied, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298 (1979); Atkins v. Lanning, 556 F.2d 485 (10th Cir.1977) (per curiam); Walker v. Cabalan, 542 F.2d 681 (6th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1647, 52 L.Ed.2d \"357 (1977). But cf. Keating v. Martin, 638 F.2d 1121 (8th Cir.1980) (per curiam) (prosecutor held absolutely immune for all acts within the scope of his duty). The Court also has observed that some such functional limitation is implicit in Butz, Harlow v. Fitzgerald, 102 S.Ct. at 2735. . See also Deliums v. Powell, 660 F.2d 802, 805 (D.C.Cir.1981) (“In line with its origins, the scope of prosecutorial immunity is limited to performance of ‘quasi-judicial’ functions.”); United States v. Heldt, 668 F.2d 1238, 1276 (D.C.Cir.1981) (per curiam) (“Unless the defendant can complain of some action taken by the prosecutor outside of his quasi-judicial capacity, such suit will generally be barred by absolute immunity.”), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 440 (1982)." }, { "docid": "22098078", "title": "", "text": "v. Kleindienst, 599 F.2d 1203 (3d Cir.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981); Jacobson v. Rose, 592 F.2d 515 (9th Cir.1978), cert. denied, 442 U.S. 930, 99-S.Ct. 2861, 61 L.Ed.2d 298 (1979). While the Supreme Court did not accept or reject the validity of this distinction in Imbler, 424 U.S. at 430-31, 96 S.Ct. at 994-995, it appeared willing to endorse the distinction in Harlow. 102 S.Ct. at 2735 n. 16. Since the duty of recommending the hiring or firing of assistant United States attorneys is a classic example of an administrative function, Hardin is not entitled to absolute immunity in this case. This conclusion is buttressed by directly applying the criteria which the Supreme Court has found to be relevant in adjudicating immunity questions. A decision on immunity must be: Predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it. [Imbler, 424 U.S. at 421, 96 S.Ct. at 748.] In addition, this court must consider public policy arguments. Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 2701, 73 L.Ed.2d 349 (1982). As has been indicated, prosecuting attorneys have traditionally been accorded absolute immunity only when performing their quasi-judicial functions. One justification for this protection is that prosecutors must be insulated from the threat of retaliatory lawsuits by disgruntled defendants. To permit such suits would deter government prosecutors from vigorously enforcing the law and would require those attorneys to spend inordinate amounts of time defending against civil liability. See Butz, 438 U.S. at 508-10, 98 S.Ct. at 2911-2912; Imbler, 424 U.S. at 424-25, 96 S.Ct. at 992. Even though Hardin was performing only an administrative function in this case, he contends that he deserved protection from retaliatory lawsuits foreseeably stemming from the discharge of his duty to make personnel recommendations, favorable or unfavorable, to the Deputy Attorney General. In support of this claim, Hardin cites Lawrence v. Aeree, 665 F.2d 1319 (D.C.Cir. 1981), a section 1985(1) case in which a former regional commissioner of the United States Customs Service sued his superiors" }, { "docid": "2525375", "title": "", "text": "Attorney General defendants. To the extent that plaintiffs seek prospective in-junctive relief, the court may exercise jurisdiction over state officials in their official capacities. Graham, 473 U.S. at 167 n. 14, 105 S.Ct. at 3106 n. 14. The complaint also seeks compensatory damages, which is consistent with the Eleventh Amendment immunity when sought from officials in their individual capacities. Scheuer, 416 U.S. at 237-38, 94 S.Ct. at 1686-87. Accordingly, the Eleventh Amendment presents no jurisdictional bar to plaintiffs’ claims for monetary damages from the Attorney General defendants in their individual capacities, and these defendants are “persons” within the meaning of Section 1983. 2. Absolute Immunity Although defendants assert that they were acting in a prosecutorial function, and are therefore entitled to absolute immunity under Rose v. Bartle, 871 F.2d 331, 343 (3d Cir.1989), the court concludes that defendants were acting solely in their investigatory capacities and are entitled only to qualified immunity. In Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the Supreme Court held that prosecutors are absolutely immune from suit for “activities intimately associated with the judicial phase of the criminal process.... ” Id, at 430, 96 S.Ct. at 995. Adopting a functional approach, the Court held that the prosecutor, who was alleged to have knowingly used perjured testimony, was immune for conduct “in initiating a prosecution and in presenting the State’s case....” Id. at 431, 96 S.Ct. at 995. Imbler left open, however, the issue whether a prosecutor was entitled to absolute, qualified, or no immunity for investigative acts. Since Imbler, the Third Circuit has indicated that a prosecutor is entitled to only qualified immunity under § 1983 for investigative or administrative acts. See Rose, 871 F.2d at 343; Ross v. Meagan, 638 F.2d 646, 648 (3d Cir.1981); Mancini v. Lester, 630 F.2d 990, 992-94 (3d Cir.1980); Forsyth v. Kleindienst, 599 F.2d 1203, 1214-15 (3d Cir.1979), cert. denied sub nomine Mitchell v. Forsyth, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981). Accord Mitchell v. Forsyth, 472 U.S. 511, 520-24, 105 S.Ct. 2806, 2812-14, 86 L.Ed.2d 411 (1985). In the instant" } ]

[ { "docid": "15853875", "title": "", "text": "MEMORANDUM AND ORDER G. WILLIAM BROWN, Bankruptcy Judge. This matter comes before the Court on the objection of the trustee to two claimed exemptions of the debtor, specifically an exemption of the cash surrender value of life insurance policies and exemption of an Individual Retirement Account (IRA). On February 19, 1982, the debtor filed a voluntary petition under the provisions of Chapter 7 of the Bankruptcy Code. Pursuant to that petition, on Schedule B-4 the debtor claimed as exempt the cash surrender value of life insurance policies pursuant to KRS 427.110 in the total amount of $3,568.00, and an Individual Retirement Account pursuant to KRS 427.150 in the amount of $5,959.68. These exemptions are claimed under the Kentucky Revised Statutes since the Commonwealth of Kentucky pursuant to the election granted by the Bankruptcy Code, 11 U.S.C. § 522(b), opted out and adopted a state exemption scheme. The exemptions here in issue are claimed under state statutes which provide in pertinent part: KRS 427.110(1): “(1) Any money or other benefit to be paid or rendered by any assessment or cooperative life or casualty insurance company is exempt from execution or other process to subject such money or other benefit to the payment of any debt or liability of a policyholder.” KRS 427.150: “(1) An individual is entitled to exemption of the following property to the extent reasonably necessary for the support of him and his dependents in addition to property totally exempt under subsection (2) of this section: (b) Assets held, payments made, and amount payable under a stock bonus, pension, profit-sharing, annuity, or similar plan or contract, providing benefits by reason of age, illness, disability, or length of service.... ” The first issue is whether the cash surrender value of policies owned by the debtor is exempt pursuant to KRS 427.110. This statute does not restrict “any money or other benefit to be paid...” as exemptible only upon death but rather it denotes an exemption extending to the debtor on any monetary value or benefits accruing by virtue of ownership. Thus, the loan values or the cash surrender values by" } ]

[ { "docid": "13941233", "title": "", "text": "debtor’s right to receive present or future payments, or payments received by the debtor, under a stock bonus, pension, profit sharing, annuity, individual retirement account, individual retirement annuity, simplified employee pension, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.” (West Supp.1986) . “(d) The following property may be exempted under subsection (b)(1) of this section: ****** (10) The debtor's right to receive— ****** (E) a payment under a stock bonus, pension, profit sharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor ...” . The Minnesota case of In re Rosen, 52 B.R. 96 (Bktcy.Minn.1985) assumed without deciding the issue that a Keogh plan was exempt under M.S.A. § 550.37 subd. 24 under the language of the statute in effect prior to July 1, 1985. . The age at which the Schlees’ son is no longer a \"dependent\" need not be decided for purposes of this order. . Social Security payments are not particularly large in most cases. No evidence was introduced showing this Debtor’s potential monthly benefit. In any event, for purposes of this Order I am assuming receipt of a Social Security benefit of unknown amount. Whatever the amount of the benefit is would not change my decision." }, { "docid": "11094275", "title": "", "text": "MEMORANDUM-OPINION G. WILLIAM BROWN, Bankruptcy Judge. This matter comes before the Court on the objection of the creditor, O.J. Tretter, to certain exemptions claimed by the debt- or, Dr. V.L. Fisher. By Order entered March 4,1986, the parties agreed to submit this issue on written memoranda, which memoranda are now of record. The debtor filed his petition for relief on December 30, 1983. He claimed as exempt the following interests in dispute in this case: (1) an IRA with a face value of $1,186.05; (2) Keogh Plan, with a face value of $6,000.00; and (3) Profit Sharing Plan and Trust, with a face value of $93,386.81, subject to setoff of $31,500.00 for a loan to debtor, for a balance of $61,886.81, thus making the total net value of the funds $69,072.86. The creditor, O.J. Tretter, was joined as creditor by amendment to the petition on February 9, 1984. The meeting of creditors was held February 3, 1984. Tretter’s objection is dated-mailed on March 8, 1984, but is marked filed with the Court on March 14, 1984. The creditor objects to the exemptions on the basis that they are not reasonably necessary for the debtor’s support as required by K.R.S. 427.150. The debtor responds by arguing that: (1) the creditor’s objection was not timely filed pursuant to Bankruptcy Rule 4003(b) and that required notice was not given; and (2) that the debtor’s interest in his Keogh Plan, Pension and Profit Sharing Plan, and IRA are reasonably necessary for his support and are thus exempt pursuant to K.R.S. 427.150. We address first the procedural objection that this objection to the exemptions was not filed within the time required by Bankruptcy Rule 4003(b). Rule 4003(b) outlines the manner of objecting to claims of exemptions and states: The trustee or any creditor may file objections to the list of property claimed as exempt within thirty days after the conclusion of the meeting of creditors held pursuant to Rule 2003(a) or the filing of any amendment to the list unless, within such period further time is granted by the Court. Copies of the objections shall" }, { "docid": "13941232", "title": "", "text": "provide for future family needs. If Mr. Schlee’s age and his inability in his remaining employable years to amass a new retirement fund are taken into account, his Keogh funds, from the evidence adduced at the hearing and the affidavits, appears to be reasonably necessary for the Schlee family support. In re Miller, supra; In re Rosen, supra; In re Donaghy, 11 B.R. 677 (Bktcy.S.D.N.Y.1981). The objector must show that the Debtor’s basic living needs in the future can be met in some way other than through Mr. Schlee’s present pension funds. I do not think this evidence was produced. THEREFORE, IT IS ORDERED that the pension funds listed as exempt property on Debtor’s B-4 Schedule are exempt assets under M.S.A. § 550.37 subdivision 24 and the trustee’s objection to the exemption is denied. . M.S.A. § 550.37 states: \"Subdivision 1. The property mentioned in this section is not liable to attachment, garnishment, or sale on any final process issued from any court. * * * * * * * Subd. 24. EMPLOYEE BENEFITS. The debtor’s right to receive present or future payments, or payments received by the debtor, under a stock bonus, pension, profit sharing, annuity, individual retirement account, individual retirement annuity, simplified employee pension, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.” (West Supp.1986) . “(d) The following property may be exempted under subsection (b)(1) of this section: ****** (10) The debtor's right to receive— ****** (E) a payment under a stock bonus, pension, profit sharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor ...” . The Minnesota case of In re Rosen, 52 B.R. 96 (Bktcy.Minn.1985) assumed without deciding the issue that a Keogh plan was exempt under M.S.A. § 550.37 subd. 24 under the language of the statute in effect prior to July 1, 1985." }, { "docid": "10215217", "title": "", "text": "parties have complied with the Court’s order, and there appear to be no facts in dispute. II. FACTS The parties agree that the value of the IRA is $3,115.00, that the Debtor is below the age at which he may withdraw from the IRA for retirement purposes, and that the Debtor does not presently depend upon the IRA for support. From the pleadings in the Debtor’s file, the Court notes that the Debtor, who has been employed at Polaroid for eighteen years as an administrative assistant, reports on Schedule J that his net monthly income is $1,428.70 and that his monthly expenses total $1,275.00. Though the Debtor owns his car, he does not own a home. The remainder of his property consists of exempt household goods. The Court lacks information about the Debtor’s age, health and job security. III. DISCUSSION Section 522(d) of the Bankruptcy Code provides [t]he following property may be exempted under subsection (b)(1) of this section: ... (10) The Debtor’s right to receive— ... (E) a payment under a stock bonus, pension, profit-sharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor, unless— (i) such plan or contract was established by or under the auspices of an insider that employed the debtor at the time the debtor’s rights under such plan or contract arose; (ii) such payment is on account of age or length of service; and (iii) such plan or contract does not qualify under section 401(a), 403(a), 403(b), 408, pr 409 of the Internal Revenue Code or 1954.... 11 U.S.C. § 522(d)(10)(E). The party objecting to an exemption has the burden of proving that the exemption is not properly claimed. Federal Rule of Bankruptcy Procedure 4003(c); In re Hickenbottom, 143 B.R. 931 (Bankr.W.D.Wash.1992). Moniz asserts that the Debtor’s IRA is not a “similar plan or contract” to stock bonus or profit-sharing plans or annuities. The Trustee makes the same argument and further states that the IRA is not “reasonably necessary”" }, { "docid": "18766041", "title": "", "text": "MEMORANDUM DECISION LOUISE DeCARL MALUGEN, Bankruptcy Judge. Jack M. Innis (“Debtor”) scheduled his individual retirement account (“IRA”) as exempt from property of the estate pursuant to 11 U.S.C. § 522(b)(1) and California Code of Civil Procedure (“C.C.P.”) § 703.-140(b)(10)(E). The Chapter 7 trustee opposes. FACTS On March 25, 1986, the Debtor filed his petition for Chapter 7 relief. Under § 522(Z) the Debtor is required to file a list of property that he claims as exempt and to cite the statutory provision creating the exemption. The Debtor has claimed his IRA account valued at $9,087.50 is exempt under C.C.P. § 703.140(b)(10)(E). The trustee opposes on the grounds that the said subsection does not provide an exemption for IRA accounts. ISSUE Does C.C.P. § 703.140(b)(10)(E) provide an exemption for IRA accounts? DISCUSSION C.C.P. § 703.140(b)(10)(E) exempts from property of the estate the debtor’s right to receive “a payment under a stock bonus, pension, profitsharing, annuity, or similar plan or contract on account of illness, disability, death, age or length of service to the extent reasonably necessary for the support of a debtor and any dependent of the debtor_” (emphasis added). Here, the debtor has claimed the entire corpus of the IRA as exempt. It is clear from the above quoted language that California law does not provide for the entire corpus to be exempt, but rather only a “payment.” The court in In re Kitson, 43 B.R. 589 (Bankr.C.D.Ill.1984) faced similar statutory language and, based upon this rationale, held that an IRA account could not be exempted. See also, In re Peeler, 37 B.R. 517 (Bankr.M.D.Tenn.1984); Roemelmeyer v. Gefen, 35 B.R. 368 (Bankr.S.D.Fla.1984); Hovis v. Lowe, 25 B.R. 86 (Bankr.D.S.C.1982); In re Howerton, 21 B.R. 621, 9 BCD 296 (Bankr.N.D.Tex.1982). The Debtor argues that an IRA account is a “similar plan or contract; i.e., similar to a “stock bonus, pension, profitsharing [plan] or annuity.” This same issue was discussed in In re Peeler, supra. There, the court noted four characteristics which distinguish an exemptible annuity or pension contract from the standard IRA: 1. An IRA is a savings account with tax" }, { "docid": "7482535", "title": "", "text": "Annuities do not satisfy Yuhas “exclusion” requirements (1), (2), and (5) above, the IRA Annuities are not excluded from Fulton’s bankruptcy estate pursuant to § 541(c)(2), which means that said annuities constitute property of Fulton’s bankruptcy estate. Consequently, Fulton may not retain any portion of the IRA Annuities unless they can be exempted from his bankruptcy estate pursuant to the federal exemption afforded by 11 U.S.C. § 522(d)(10)(E). II. Whether Fulton can exempt the IRA Annuities under § 522(d)(10)(E)? 11 U.S.C. § 522(d)(10)(E) provides, in pertinent part, that a debtor may exempt his or her right to receive— a payment under a stock bonus, pension, profit-sharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor. 11 U.S.C.A. § 522(d)(10)(E) (West 1999). Fulton maintains that he may exempt the IRA Annuities in their entirety pursuant to § 522(d)(10)(E). The Trustee contends otherwise, however, arguing primarily that the IRA Annuities may not be exempted at all under § 522(d)(10)(E) because (a) an IRA is not similar to “a stock bonus, pension, profit-sharing, [or] annuity ... plan or contract,” and (b) Fulton did not have, as of his petition filing date, the present right to receive payment from said annuities on account of either having reached age 59)6, death, or disability. The Trustee secondarily argues that, even if Fulton may potentially exempt a portion of the IRA Annuities pursuant to § 522(d)(10)(E), said annuities may not be exempted in their entirety under said provision because a portion thereof is not “reasonably necessary for the support of’ Fulton and his wife. After considering the preceding arguments of the Trustee, which arguments are addressed in detail below, the Court concludes that Fulton may exempt the IRA Annuities under § 522(d)(10)(E) to the extent that said annuities are “reasonably necessary for the support” of himself and his dependents. A. Whether an IRA is similar to “a stock bonus, pension, profit-sharing, [or] annuity ... plan or contract”? With respect to this particular" }, { "docid": "18578951", "title": "", "text": "from $5,000 to $10,000 would retroactively alter property rights vested in 1983. The Minnesota State Legislature has determined that “no law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature.” Minn.Stat. Ann. § 645.21 (West 1975). Therefore, because the Minnesota State Legislature did not manifest any intention that the increased exemption should be applied retroactively this Court will not construe the change in Section 550.37, subd. 5 to apply retroactively to the debtor in this case. In addition, because the amendment to Section 550.37, subd. 5, is held to not apply retroactively, then the third step of analysis mentioned above becomes unnecessary and the Court is not required to decide the constitutional issue. M.S.A. 550.37 Subd. 24 As amended in 1985, M.S.A. § 550.-37 subd. 24 defines the employee benefits of a debtor which are exempt as follows: Subd. 24. EMPLOYEE BENEFITS. The debtor’s right to receive present or future payments, or payments received by the debtor, under a stock bonus, pension, profit sharing, annuity, individual retirement account, individual retirement annuity, simplified employee pension, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.” It is the burden of the creditor to prove that the exemption is not properly claimed. Bankruptcy Rule 4003(c). State Bank of Young America established that Schuette owns an equity account at Bongards. The payment of $3,700 in February 1986 to the debtor representing his seven year old equity balance and the fact that the equity accounts are retained for deficit purposes only showed that the accounts are not payable “on account of illness, disability, death or age.” Schuette claimed that the Bongards monies are exempt under state law exemptions. However, Minnesota does not independently define stock bonus, pension, profit sharing, annuity, individual retirement account, individual retirement annuity or simplified employee pension plans. Therefore, the federal definitions of those terms must necessarily be used in interpretation of M.S.A. § 550.37, Subd. 24. Stock bonus, pension, profit sharing," }, { "docid": "1125549", "title": "", "text": "§ 541(c)(2) provides that it applies to restrictions on certain transfers that are enforceable under nonbankruptcy law, including federal law. “Transfer” is defined in the Bankruptcy Code as “every mode of disposing of or parting with property or with an interest therein ...” (emphasis added). 11 U.S.C. § 101(58). Section 72(t) of the Internal Revenue Code does not place any restrictions on debtor’s “disposing of or parting with” his interest in the IRA. Rather, it imposes a tax surcharge on debtor’s receipt of a distribution from the IRA before he reaches a specified age. Debtor was available to testify at trial but declined to do so. Counsel averred that debtor might in the future be required to invade this res and incur this penalty so as to use these assets. To date, this averment is mere speculation by counsel. Debtor has declined to engage in even this speculation. We concur and refuse to speculate. The exclusion from estate property set forth that § 541(c)(2) of the Bankruptcy Code does not apply to debtor’s IRA by virtue of 26 U.S.C. § 72(t). Accordingly, it must be concluded that the IRA is included in the bankruptcy estate as of the filing of the bankruptcy petition. B. Is The IRA Exemptible Pursuant To 11 U.S.C. § 522(d)(10)(E)? Once the bankruptcy estate has been created, an individual debtor may claim certain property included therein as exempt pursuant to 11 U.S.C. § 522, which provides in relevant part as follows: (d) The following property may be exempted under subsection (b)(1) of this section: .... (10) the debtor’s right to receive— ... (E) a payment under a stock bonus, pension, profit sharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.... According to debtor, he should be permitted to exempt the entire declared value of his IRA because it may be reasonably necessary in the future for his and his dependents’ support. This argument, like the previous argument, is without merit." }, { "docid": "1281468", "title": "", "text": "only claim to date. In response to the Trustee’s objection to exempting his IRA and KEOGH accounts, Debtor filed a motion to dismiss his bankruptcy case. This motion is pending before the court. Trustee objects to Debtor’s exemption because of (1) untimeliness of the exemption claim and (2), the accounts are not exempt pursuant to state law; Ohio Revised Code, Section 2329.66(A)(10)(c). Per Bankruptcy Rule 4003(c), Trustee has the burden to prove his objection. He attempts to satisfy this requirement by proving Debtor’s amendment of exemptions is untimely pursuant to the Bankruptcy Rules and Debtor’s intentional failure to schedule the accounts as assets. This argument is without merit. Bankruptcy Rule 1009(a) permits exemptions to be amended any time before the case is closed. Lucius v. McLemore, 741 F.2d 125 (6th Cir.1984). Moreover, failure to schedule the accounts as assets does not appear to be fraudulent. The accounts were clearly disclosed in Debtor’s Statement of Affairs. Debtor seeks exemptions under Ohio Revised Code Section 2329.66(A)(10)(c) which exempts IRA and KEOGH accounts as follows:— “Except for any portion of the assets that were deposited for the purpose of evading the payment of any debt, the person’s right in the assets held in, or to receive any payment under, any individual retirement account, individual retirement annuity, or Keogh or “H.R. 10” plan that provides benefits by reason of illness, disability, death, or age, to the extent reasonably necessary for the support of the person and any of his dependents.” Trustee challenges the exemption maintaining the funds are not reasonably necessary for the support of Debtor and his dependents. Reasonable necessity of the funds for a Debtor’s support is a factual determination to be made on a case by case basis. In re Kochell, 732 F.2d 564 (7th Cir.1984). A debtor’s future needs and income are relevant to this determination. Hunter v. Ohio Citizens Bank (In re Hotchkiss), 93 B.R. 546 (Bankr.N.D.Ohio 1988), In re Pettit, 55 B.R. 394 (Bankr.S.D.Iowa 1985), aff’d, 57 B.R. 362 (D.C.S.D.Iowa 1985). The appropriate amount under the reasonably necessary standard is an amount sufficient “to sustain basic needs, not" }, { "docid": "19177869", "title": "", "text": "the IRA holdings to First Citizens stock. Bates is a single, fifty year-old college graduate, without dependents. Although he has substantial experience in sales and management, having owned and operated several small businesses, including a bowling alley, a car dealership and a sports shop, Bates is presently unemployed and without immediate employment prospects. The IRA is the only retirement fund Bates owns. His exempt property beyond the IRA is modest. First Citizens obtained attachment and execution on trustee process against Prudential Securities, Inc., custodian of the IRA, well prior to Bates’ bankruptcy filing. The bank’s lien claim exceeds the estimated value of the IRA. DISCUSSION A. Validity and Extent of Exemption 1. Is Bates’ Self-Directed IRA Exempt? a. Burden of Proof. As the party objecting to the debtor’s exemption claim, First Citizens bears the burden of “proving that the exemptions are not properly claimed.” Fed.R.Bankr.P. 4003(c). See In re Maylin, 155 B.R. 605, 614 (Bankr.D.Me.1993). b. The Statute. Maine has accepted the congressional invitation, extended in 11 U.S.C. § 522(b)(1), to “opt out” of § 522(d)’s federal exemption scheme. 14 M.R.S.A. § 4426. In re Maylin, 155 B.R. at 608 n. 6; In re Saturley, 149 B.R. 245, 246 n. 5 (Bankr.D.Me.1993). Thus, the question whether Bates’ IRA is exempt is determined by 14 M.R.S.A. § 4422, which provides: The following property is exempt from attachment and execution, except to the extent that it has been fraudulently conveyed by the debtor: * * * * * * 13. Disability benefits; pensions. The debtor’s right to receive the following: E. A payment under a stock bonus, pension, profitsharing, annuity or similar plan or contract on account of illness, disability, death, age or length of service to the extent reasonably necessary for the support of the debtor and any dependent of the debtor, unless: (1)The plan or contract was established by or under the auspices of an insider that employed the debtor at the time the debtor’s rights under the plan or contract arose; (2) The payment is on account of age or length of service; and (3) The plan or contract" }, { "docid": "10215218", "title": "", "text": "profit-sharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor, unless— (i) such plan or contract was established by or under the auspices of an insider that employed the debtor at the time the debtor’s rights under such plan or contract arose; (ii) such payment is on account of age or length of service; and (iii) such plan or contract does not qualify under section 401(a), 403(a), 403(b), 408, pr 409 of the Internal Revenue Code or 1954.... 11 U.S.C. § 522(d)(10)(E). The party objecting to an exemption has the burden of proving that the exemption is not properly claimed. Federal Rule of Bankruptcy Procedure 4003(c); In re Hickenbottom, 143 B.R. 931 (Bankr.W.D.Wash.1992). Moniz asserts that the Debtor’s IRA is not a “similar plan or contract” to stock bonus or profit-sharing plans or annuities. The Trustee makes the same argument and further states that the IRA is not “reasonably necessary” for the Debtor’s future support. The Trustee adds that since the Debtor does not have a present right to payments from the IRA, § 522(d)(10)(E) does not apply. The Trustee and Moniz cite, inter alia, In re Clark, 711 F.2d 21 (3d Cir.1983) (Keogh plan not exempt because debtor had no present right to receive payments), In re Heisey, 88 B.R. 47 (Bankr.D.N.J.1988) (IRA not exempt because the debtor had no present right to receive payments), and In re Pauquette, 38 B.R. 170 (Bankr.D.Vt.1984) (IRAs not “similar plans” because debtor has control of the funds). The Debtor relies upon In re Chiz, 142 B.R. 592 (Bankr.D.Mass.1992) to support his claim that his IRA is exempt from the estate as a “similar plan” provided that his IRA is found to be reasonably necessary for his support. In In re Cilek, 115 B.R. 974 (Bankr.W.D.Wis.1990), the court addressed four rationales used by courts to deny debtors exemptions in IRAs: 1) the debtor has “no present rights to receive payments,” In re Heisey, 88 B.R. 47 (Bankr.D.N.J.1988); 2)" }, { "docid": "15853881", "title": "", "text": "instant case. See In Re Talbert, 15 B.R. 536 (Bkrtcy., W.D.La.1981); In Re Howerton, 21 B.R. 621 (Bkrtcy., N.D.Tex.1982); Matter of Baviello, 12 B.R. 412 (Bkrtcy., E.D.N.Y.1981); Matter of Mace, 4 BCD 94 (Bkrtcy., D.Or. 1978); In re Ferwerda, 424 F.2d 1131 (7th Cir.1970); In Re Graham, 24 B.R. 305 (Bkrtcy., N.D.Iowa 1982); and In Re Hinshaw, 23 B.R. 233 (Bkrtcy., D.Kan.1982). Without rejecting the rationale therein but recognizing that the Court is here restricted to an interpretation of Kentucky law, it is the opinion of the Court that two tests exist to determine whether the IRA account here in question is within the purview of the exemption statute: (1) Is the cash value of the IRA account reasonably necessary for the support of the debtor and his dependents in addition to property otherwise totally exempt? (2) Is an IRA account a “similar plan or contract” under the provisions of KRS 427.-150(l)(b)? The cash value of the debtor’s IRA account is approximately $6,000.00. The trustee does not allege that this value is excessive or not reasonably necessary under the threshold issue of exemptibility, and in view of its modest amount the Court finds that the test of reasonable necessity has been met. Rather, the trustee urges that such accounts are not exempt since the ex press language of the statute fails to specifically denote an IRA account as exempt under KRS 427.150(l)(b). The Kentucky statute differs distinctly by contrast to other state statutes relied upon by bankruptcy courts in determining this issue. Our statute exempts “assets held, payments made, and amount payable under a stock bonus, pension, profit-sharing, annuity, or similar plan or contract....” Following the usual rules of statutory construction, it is apparent that the specific programs denoted are not all inclusive and that for the phrase “or similar plan or contract” to be extended its legislative intent the determination must be made as to whether an IRA account is such a “similar plan or contract.” Each of the specifics named as well as the IRA program has the common theme of deferred tax liability on assets presently owned," }, { "docid": "11094279", "title": "", "text": "discharge hearing on April 25, 1984. Further, we find that debtor’s argument that the objection must be mailed to both the debtor and his attorney, to be without merit. Service on the debtor’s attorney was obviously sufficient to give the debtor notice of the objections. Rule 4003(b) states that copies of the objections shall be delivered or mailed to the trustee and to the person filing the list and his attorney. Reading this language literally and carried to the extreme, one could conclude that “the person filing the list” means someone from the attorney’s office who physically filed the same. We decline to read the Rule so literally as to mandato-rily require service on both the debtor and his attorney. Accordingly, the debtor’s motion that the objection was not timely filed and that the required notice was not given pursuant to Bankruptcy Rule 4003(b), is overruled. Next we turn to the issue of whether the debtor’s interest in his Keogh Plan, Pension and Profit Sharing Plan, and IRA are reasonably necessary for his support and that of his dependents and thus are exempt pursuant to K.R.S. 427.150. That statute provides: (1) An individual is entitled to exemption of the following property to the extent reasonably necessary for the support of him and his dependents in addition to property totally exempt under subsection (2) of this section: (b) ... assets held, payments made, and amounts payable under a stock bonus, pension, profit-sharing, annuity, or similar plan or contract, providing benefits by reason of age, illness, disability, or length of service.... Neither party has raised the issue that any of these three plans or account are not included under the statute. Following In re Worthington, 28 B.R. 736 (Bankr.W.D.Ky.1983), which held that an IRA account was exempt, we find that the plans and account in this case are included under K.R.S. 427.150. The disputed issue is whether the entire cash values of these funds are reasonably necessary for the support of the debtor and his dependents. First, the Court notes that the objecting party has the burden of proving that the exemptions" }, { "docid": "10173732", "title": "", "text": "Findings of Fact, Conclusions of Law; ORDERS re Objections to Exemptions MICHAEL J. MELLOY, Bankruptcy Judge. The matter before the Court is whether Roger L. Matthews’ (Debtor) Individual Retirement Account is exempt from Debtors’ bankruptcy estate. The matter came for hearing on March 27, 1986, at which time the exemption issue was taken under advisement. The Court having reviewed the evidence and being fully advised, now makes the following Findings of Fact, Con- elusions of Law, and Order pursuant to F.R.B.P. 7052. This is a core proceeding under 28 U.S.C. § 157(b)(2)(B). FINDINGS OF FACT 1. Prior to filing for bankruptcy relief, Debtor established and contributed to an Individual Retirement Account (IRA). 2. In his bankruptcy schedules, Debtor claimed his IRA fund as exempt property pursuant to Iowa Code § 627.6(9)(e). 3. At time of hearing Debtor had not attained age 59V2. 4. The full amount of the IRA account is reasonably necessary for the support of Debtor and his dependents. DISCUSSION The Iowa exemption statute relevant to the case at bar provides: A debtor who is a resident of this State may hold exempt from execution the following property ... (9) The debtor’s rights in (e) the payment under a pension, annuity or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor. Iowa Code Section 627.6(9)(e). The Trustee has objected to Debtor’s claim of exemption. The Trustee contends Debtor’s IRA is not exempt from his bankruptcy estate because Debtor’s right to payment from his IRA is not due to his illness, disability, death, age or length of service. Further, because Debtor is virtually free to fund, manage and withdraw from his IRA at any time, the Trustee contends Debtor’s IRA is little more than a tax deferring savings account. In response, Debtor contends his relatively free control and access to his IRA does not render it nonexempt. Rather, Debtor argues his IRA is exempt because it is a contract similar to pensions and annuities and it" }, { "docid": "23639809", "title": "", "text": "CONTRACT ON ACCOUNT OF ILLNESS, DISABILITY, DEATH, AGE, OR LENGTH OF SERVICE ... At least one court has found that an IRA is not exempt because an IRA is not payable “on account of illness, disability, death, age or length of service.” In re Fichter, 45 B.R. 534 (Bankr.N.D.Ohio 1984). See also In re Pauquette, supra. While the words “on account of” are capable of several interpretations, see, 29A Words and Phrases, p. 229, et seq., In re Gilbert, 74 B.R. 1, 2 (Bankr.N.D.Iowa 1985), and In re McCabe, 74 B.R. 119, 120 (Bankr.N.D.Iowa 1986), this Court need not define the term “on account of” to determine whether an IRA is exempt. In construing 11 U.S.C. § 522(d)(10)(E) this Court continues to be mindful of the maxim: exemption statutes are to be liberally construed in favor of the debtor. See In re Fisher, 63 B.R. 649, 651 (Bankr.W.D.Ky.1986). The phrase “on account of” only modifies the term “contract”; the phrase “on account of” does not modify the phrase “stock, bonus, pension, profitsharing, annuity, or similar plan.” Accordingly, while a right to receive a payment under any contract is not exempt under 11 U.S.C. § 522(d)(10)(E) unless such rights are on account of illness, disability, death, age, or length of service, a right to receive a payment under a stock bonus, pension, profitsharing, annuity, or similar plan is exempt under 11 U.S.C. § 522(d)(10)(E) even though such rights are not on account of illness, disability, death, age, or length of service. ... TO THE EXTENT REASONABLY NECESSARY FOR THE SUPPORT OF THE DEBTOR ... The party objecting to an exemption has the burden of proving that the exemptions are not properly claimed. Bankruptcy Rule 4003(c). In the present case, Honda Finance must prove that the amount claimed exempt — $17,017.56—is not reasonably necessary for the support of the Debt- or and his dependents. See In re Fisher, 63 B.R. at 651 (Bankr.W.D.Ky.1986). In Matter of Kochell, 732 F.2d 564, 566 (7th Cir.1984) the Court of Appeals upheld the Bankruptcy Court’s findings that the funds in question were not reasonably necessary for" }, { "docid": "13941227", "title": "", "text": "added IRAs and SEPs to the rest of exemptible assets. Keogh plans were covered under the pre July 1, 1985 language. Therefore, the issue of which version of M.S.A. § 550.37 subd. 24 debtor is entitled to use is not important. II. The second issue raised by the trustee is whether the present and/or future needs of the debtor should be considered in determining whether pension funds are exempt under M.S.A. § 550.37 subdivision 24. ■This issue has been considered in Minnesota bankruptcy cases and the cases have held that present and future needs of a debtor are to be considered. In re Miller, 33 B.R. 549 (Bktcy.Minn.1983) (pension plan); In re Bari, 43 B.R. 253 (Bktcy.Minn.1984) (disability plan); In re Sederstrom, 52 B.R. 448 (Bktcy.Minn.1985) (annuity contracts). .The change in M.S.A. § 550.37 subd. 24 in 1985 clearly established as I see it that the Minnesota statute is to include plan assets which are not yet in pay status also. The statute now reads: “Subd. 24. EMPLOYEE BENEFITS. The debtor’s right to receive present or future payments, or payments received. by the debtor, under a stock bonus, pension, profit sharing, annuity, individual retirement account, individual retirement annuity, simplified employee pension, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.” (West Supp.1986) (Emphasis added.) Since present and future pension benefits are included within the ambit of the statute, I think it is obvious that the Court is to consider present and future needs of a debtor in determining the exemptibility of pension funds also. Here, the debtor is 56. He has a wife and dependent child. He has no present means of funding a new retirement plan. He has health problems. He has a limited income potential. Given these factors, Schlee is unlikely to be able to provide for his future retirement needs if his present pensions are not exempt. III. The final issue in this case is whether the pensions, or any part of them," }, { "docid": "23639810", "title": "", "text": "plan.” Accordingly, while a right to receive a payment under any contract is not exempt under 11 U.S.C. § 522(d)(10)(E) unless such rights are on account of illness, disability, death, age, or length of service, a right to receive a payment under a stock bonus, pension, profitsharing, annuity, or similar plan is exempt under 11 U.S.C. § 522(d)(10)(E) even though such rights are not on account of illness, disability, death, age, or length of service. ... TO THE EXTENT REASONABLY NECESSARY FOR THE SUPPORT OF THE DEBTOR ... The party objecting to an exemption has the burden of proving that the exemptions are not properly claimed. Bankruptcy Rule 4003(c). In the present case, Honda Finance must prove that the amount claimed exempt — $17,017.56—is not reasonably necessary for the support of the Debt- or and his dependents. See In re Fisher, 63 B.R. at 651 (Bankr.W.D.Ky.1986). In Matter of Kochell, 732 F.2d 564, 566 (7th Cir.1984) the Court of Appeals upheld the Bankruptcy Court’s findings that the funds in question were not reasonably necessary for support under 11 U.S.C. § 522(d)(10)(E). The Court of Appeals stated: While Congress has limited pension plan exemptions to amounts “reasonably necessary for the support of the debtor,” the statute does not elaborate on the proper interpretation of that phrase. The legislative history indicates that the federal exemptions are derived in large part from the Uniform Exemptions Act, promulgated by the Commissioners of Uniform State Laws in 1976. H.R.Rep. No. 595, 95th Cong. 1st Sess. 361, reprinted in 1978 U.S.Code Cong. & Ad. News 5787, 6317. Section 6 of the Uniform Exemptions Act defined the phrase “property to the extent reasonably necessary for the support of [the debtor] and his dependents” as “property required to meet the present and anticipated needs of the individual and his dependents as determined ... after consideration of the individual’s responsibilities and all of the present and anticipated property and income of the individual, including that which is exempt.” One commentator has suggested that the limitation was added to prevent officers of large corporations and professionals from placing large amounts" }, { "docid": "11094280", "title": "", "text": "that of his dependents and thus are exempt pursuant to K.R.S. 427.150. That statute provides: (1) An individual is entitled to exemption of the following property to the extent reasonably necessary for the support of him and his dependents in addition to property totally exempt under subsection (2) of this section: (b) ... assets held, payments made, and amounts payable under a stock bonus, pension, profit-sharing, annuity, or similar plan or contract, providing benefits by reason of age, illness, disability, or length of service.... Neither party has raised the issue that any of these three plans or account are not included under the statute. Following In re Worthington, 28 B.R. 736 (Bankr.W.D.Ky.1983), which held that an IRA account was exempt, we find that the plans and account in this case are included under K.R.S. 427.150. The disputed issue is whether the entire cash values of these funds are reasonably necessary for the support of the debtor and his dependents. First, the Court notes that the objecting party has the burden of proving that the exemptions are not properly claimed. Bankruptcy Rule 4003(c). Tretter has the burden of proving that the amount claimed exempt (cash value — $69,072.86) is not reasonably necessary for the support of the debtor and his dependents upon his retirement, illness or disability. Secondly, exemption statutes are entitled to a construction liberal to the debtor. In re Worthington, supra at 739; Doethloff v. Penn Mutual Life Insurance Co., 117 F.2d 582 (6th Cir.1941). The facts show that the debtor was a 58 year old orthopedic surgeon at the date of filing; he is now 61 years of age. The statement of affairs discloses that Dr. Fisher earned from his professional service corporation in the two years preceding his petition, $437,500.00 (1981), and approximately $564,000.00 (1982). Additionally, Dr. Fisher had outside income from his racehorse investments, rents, royalties, and interest of $74,239.00 in 1982, and $49,-300.00 in 1981. To determine if the reasonably necessary test has been met, the court must examine all of the facts and circumstances including the debtor’s age, earning capacity, present and future financial" }, { "docid": "13941228", "title": "", "text": "or future payments, or payments received. by the debtor, under a stock bonus, pension, profit sharing, annuity, individual retirement account, individual retirement annuity, simplified employee pension, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.” (West Supp.1986) (Emphasis added.) Since present and future pension benefits are included within the ambit of the statute, I think it is obvious that the Court is to consider present and future needs of a debtor in determining the exemptibility of pension funds also. Here, the debtor is 56. He has a wife and dependent child. He has no present means of funding a new retirement plan. He has health problems. He has a limited income potential. Given these factors, Schlee is unlikely to be able to provide for his future retirement needs if his present pensions are not exempt. III. The final issue in this case is whether the pensions, or any part of them, are “reasonably necessary for the support of the debtor and any dependent of the debt- or”. The trustee as objector must prove that the Keogh funds are not reasonably necessary to Mr. Schlee’s support. Bankruptcy Rule 4003(c). Case law has generally interpreted this phrase under § 550.37 subdivision 24 and 11 U.S.C. § 522(d)(10)(E) in light of the standards set forth in the case of Warren v. Taff, (In re Taff), 10 B.R. 101 (Bktcy.Conn.1981) since the language of both statutes is the same. The Taff case requires a Court to review a debtor’s other income sources and other exempt property. The Court must consider the debtor’s age, present employment, future employment prospects and general health. In re Werner, 31 B.R. 418 (Bktcy.Minn.1983). The amount “reasonably necessary” for support of a debtor is an amount “sufficient to sustain basic needs, not related to his former status in society or the lifestyle to which he is accustomed but taking into account the special needs that a retired and elderly debtor may claim.” In re Taff at" }, { "docid": "1125550", "title": "", "text": "virtue of 26 U.S.C. § 72(t). Accordingly, it must be concluded that the IRA is included in the bankruptcy estate as of the filing of the bankruptcy petition. B. Is The IRA Exemptible Pursuant To 11 U.S.C. § 522(d)(10)(E)? Once the bankruptcy estate has been created, an individual debtor may claim certain property included therein as exempt pursuant to 11 U.S.C. § 522, which provides in relevant part as follows: (d) The following property may be exempted under subsection (b)(1) of this section: .... (10) the debtor’s right to receive— ... (E) a payment under a stock bonus, pension, profit sharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.... According to debtor, he should be permitted to exempt the entire declared value of his IRA because it may be reasonably necessary in the future for his and his dependents’ support. This argument, like the previous argument, is without merit. Debtor may not exempt the IRA pursuant to 11 U.S.C. § 522(d)(10)(E) for a variety of reasons. As has been noted, debtor is only 52 years of age. He is not receiving any distribution from the IRA at this time and cannot do so without incurring a substantial tax penalty because he has not yet reached 59V2 years of age. The Third Circuit has held that payments under a Keogh plan are exemptible pursuant to § 522(d)(10)(E) only if the debtor has a present right to receive payments. A future right to receive such payments is not so exemptible. See In re Clark, 711 F.2d 21, 23 (3d Cir.1983). Some courts outside of this circuit have been critical of In re Clark and have declined to follow it. See In re Cilek, 115 B.R. 974, 978-79 (Bankr.W.D.Wis.1990). This court, however, is constrained to adhere to the holding of In re Clark where it is applicable. It is immaterial that this debtor seeks to exempt an IRA, as opposed to a Keogh plan. The rationale of" } ]

[ { "docid": "4928172", "title": "", "text": "of UNC’s liability for damages caused by the Churchrock spill. Whether this action should be extended to reach a proposed class of defendants and whether a final injunction and declaratory judgment on the subject of Navajo Tribal Court jurisdiction should be issued remain to be determined. . UNC Resources, Inc., is the parent corporation of United Nuclear Corporation and UNC Mining & Milling Services, Inc., is its subsidiary. All are plaintiffs herein and are referred to collectively as “UNC.” . UNC also challenges the Tribal Court’s jurisdiction on other grounds, which need not be considered here. . The Indian Civil Rights Act (ICRA) is not a grant of tribal jurisdiction; it only specifies some rights that must be preserved if jurisdiction over non-Indians is ever conferred on the tribes. 435 U.S. at 195-96 n. 6, 98 S.Ct. at 1014 n. 6. It is noteworthy that the ICRA, while providing expressly for federal review of tribal criminal prosecutions through habeas corpus proceedings, by its terms creates no means through which a party to a civil suit in tribal court can invoke federal protection of his rights. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); but see Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980), petition for cert. filed, 49 U.S.L.W. 3305 (U.S. Oct. 28, 1980) (No. 80-613). Nor does it appear under current statutes and case law that appeal or other recourse lies from a tribal court to any court outside the tribe. In the absence of a route to the United States Supreme Court, where the scope of federal rights under the Supremacy Clause must ultimately be decided, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), it is difficult to understand how a United States citizen who is not a tribal member could be required, in the absence of a contractual relationship or actual or implied consent, to appear as a civil defendant in a tribal court. . The Navajos propose a balancing of interests and argue that UNC’s stake in" } ]

[ { "docid": "23477400", "title": "", "text": "Indians, 595 F.2d 1153, 1154 & n.1 (9th Cir. 1979). So long as a case is pending, the issue of federal court jurisdiction may be raised at any stage of the proceedings either by the parties or by the court on its own motion. 1 Moore’s Federal Practice ¶ 0.60[4] (2d ed. 1981). Rule 12(hX3) of the Federal Rules of Civil Procedure provides that “[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” Therefore, the court did not err in reconsidering this issue, and the court’s finding of tribal sovereign immunity must stand unless it affirmatively appears that there has been a congressional or tribal waiver of immunity. II. Jurisdiction over the Tribal Defendants Ramey alleges a congressional waiver of sovereign immunity under the Indian Civil Rights Act (ICRA), 25 U.S.C. §§ 1301-1341, because the Tribal Defendants deprived it of equal protection of the laws and due process of law by (1) denying it access to tribal courts, and (2) wrongfully withholding the contract retainage. In particular, Ramey cites § 1302 of the Act, which provides: No Indian tribe in exercising powers of self-government shall— ****** (8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law. Becau.se of the alleged deprivation of rights guaranteed by the ICRA, Ramey asserts that the district court had jurisdiction over its claims by virtue of either 28 U.S.C. § 1343(a)(4), conferring jurisdiction over federal laws protecting civil rights, or § 1331, which confers jurisdiction over matters arising under the laws of the United States. In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), the Supreme Court clarified the meaning and effect of § 1302 of the ICRA. The Court made clear that, aside from authorizing writ of habeas corpus actions as provided in § 1303, the ICRA leaves tribal sovereign immunity intact. Id. at 59, 98 S.Ct. at 1677. In this action, Ramey has" }, { "docid": "23341972", "title": "", "text": "U.S.C. § 1302(8)), and violated the prohibition against a bill of attainder, (II R. 372, 535; see 25 U.S.C. § 1302(9)). The district court held that the ICRA had not waived the Tribe’s sovereign immunity to these counterclaims, citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106, 546 F.Supp. at 587. We agree. In Santa Clara Pueblo, the Court held that, since Congress expressly granted federal jurisdiction only for habeas corpus suits, 25 U.S.C. § 1303, [njothing on the face of Title I of the ICRA purports to subject tribes to the jurisdiction of the federal courts in civil actions for injunctive or declaratory relief. 436 U.S. at 59, 98 S.Ct. at 1677. Therefore, the Court continued, “suits against the tribe under the ICRA are barred by its sovereign immunity from suit.” Ibid. The companies argue that their ICRA claims fall within the federal courts’ jurisdiction under our decision in Dry Greek Lodge, Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir.), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847. There plaintiffs sought relief under the ICRA from tribal action which blocked all access to their land and “for all practical purposes confined” them there. 623 F.2d at 684. This court emphasized that, in contrast to the situation in Santa Clara Pueblo, the dispute was not “strictly an internal one between tribal members and the tribal government”, and that the non-Indian plaintiffs had demonstrated that they had “no remedy within the tribal machinery nor with the tribal officials in whose election they cannot participate.” 623 F.2d at 685. This controversy between the Tribe and the lessee defendants does not involve claims of “particularly egregious allegations of personal restraint and deprivation of personal rights...” See Ramey Constr. Co. v. Apache Tribe of the Mescalero Reservation, 673 F.2d 315, 319 n.4 (10th Cir.); Shubert Constr. Co. v. Seminole Tribal Housing Authority, 490 F.Supp. 1008, 1010 (S.D.Fla.). Indeed it is difficult to visualize these counterclaims as coming within the framework of the Indian Civil Rights Act. And Santa Clara Pueblo, 436 U.S." }, { "docid": "1964340", "title": "", "text": "members who marry outside the tribe. The denial of such membership in the Pueblo precluded the children from voting in tribal elections, holding secular office, and inheriting their mother’s home and possessory interest in the tribal communal lands. She claimed that this tribal ordinance discriminated on the basis of both sex and ancestry in violation of Title II of the ICRA, 25 U.S.C. §§ 1301-1303. She sought injunctive and declaratory relief in a civil action in federal court. However, the Supreme Court holding was that the ICRA could not be interpreted to impliedly authorize an action in federal courts against an Indian tribe or its officers for deprivation of the Act’s substantive rights. The Court applied the longstanding rule that absent congressional authorization Indian tribes are exempt from suit under the doctrine of sovereign immunity. United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940). The holding was that nothing on the face of the ICRA purported to waive that sovereign immunity and subject tribes to the jurisdiction of federal courts in civil action for injunctive or declaratory relief. Santa Clara, supra, 436 U.S. at 59, 98 S.Ct. at 1677. The only remedy in federal courts expressly authorized by Congress in the ICRA is a writ of habeas corpus to test the legality of a detention by order of an Indian tribe. 25 U.S.C. § 1303. Therefore, the Court concluded that except for habeas corpus proceedings suits against Indian tribes for deprivation of substantive rights recognized in the ICRA are barred by sovereign immunity. Santa Clara, supra, 436 U.S. at 59, 98 S.Ct. at 1677. The case of Dry Creek is a post-Santa Clara Tenth Circuit decision which recognizes an exception to that decision’s bar from suit in federal court pursuant to the doctrine of Indian sovereign immunity. Plaintiffs in Dry Creek were non-Indians who owned in fee a parcel of property within the boundaries of the Wind River Reservation of the Shoshone and Arapahoe Indian Tribes. In 1974 plaintiffs built a small inn or hotel, called the Dry Creek Lodge." }, { "docid": "14727126", "title": "", "text": "14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3654 at 186-90 (1985) (absence of consent of United States is jurisdictional defect). . The ICRA provides that federal habeas corpus relief is \"available to any person, in a court of the United States, to test the legality of his detention by order of an Indian Tribe.” 25 U.S.C. § 1303 (1982). . Dry Creek Lodge involved non-Indian plaintiffs who owned land in fee simple within the boundaries of the Shoshone and Arapahoe Indians’ Wind River Reservation. The superintendent of the Reservation promised the plaintiffs that access to a lodge they proposed to build would not be a problem, but after it was built the tribes blocked the sole road from the lodge to the highway. The tribes subsequently refused the plaintiffs access to the tribal court. . In White v. Pueblo of San Juan, 728 F.2d 1307 (10th Cir.1984), non-Indians who owned land within the Pueblo’s boundaries invoked the ICRA and Dry Creek Lodge exception in their suit against the Pueblo for blocking the sale of their land to other non-Indians. This court rejected the plaintiffs’ reliance on Dry Creek Lodge, noting that ”[n]ecessarily the Dry Creek opinion must be regarded as requiring narrow interpretation in order not to come into conflict with the decision of the Supreme Court in Santa Clara.\" Id. at 1312. Consistent with construing Dry Creek to \"provide a narrow exception to the traditional sovereign immunity bar from suits,” we held that an \"aggrieved party must have actually sought a tribal remedy, not merely have alleged its futility.\" Id. See also Ramey Const. Co. v. Apache Tribe of Mescalero Reservation, 673 F.2d 315 (10th Cir.1982), where we held that tribal sovereign immunity barred a suit pursuant to the ICRA brought by a non-Indian in federal court to settle a contract dispute with the Apache Tribe, even though the plaintiff alleged lack of access to tribal courts. The plaintiff relied heavily on Dry Creek Lodge, but we held it distinguishable because \"[tjhat case involved particularly egregious allegations of personal restraint and deprivation of" }, { "docid": "1964335", "title": "", "text": "1670, 56 L.Ed.2d 106 (1978) holding that federal courts do not have jurisdiction to hear claims against Indian tribes under the ICRA except in habeas corpus proceedings; and Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981), reh. den., 450 U.S. 960, 101 S.Ct. 1421, 67 L.Ed.2d 385. There this court announced an exception to Santa Clara when it held that federal jurisdiction existed under the facts of the case. The Whites contend that their suit in federal court against the Pueblo of San Juan Tribe is not barred by the doctrine of sovereign immunity, because they satisfy the three requirements for federal court jurisdiction, allegedly enumerated by this court in Dry Creek. The Whites argue those requirements are: 1. involvement of a non-Indian in the action. 2. the alleged deprivation of an individual’s real property interests; and 3. the absence of an adequate tribal remedy. The Whites interpret Dry Creek as limiting the language of Santa Clara quoting: ... the reason for the limitation [against suing Indian tribes] and the references to tribal immunity [in Santa Clara ] also disappear when the issue relates to a matter outside of internal tribal affairs and when it concerns an issue with a non-Indian. Dry Creek, supra, at 685. Accordingly the Whites maintain the federal district court possessed jurisdiction to hear their claims against the Pueblo for deprivation of civil rights under the ICRA, because non-Indians were involved and because the controversy did not merely involve internal tribal affairs. The Whites also maintain that even if Dry Creek is interpreted narrowly to permit federal jurisdiction only in the absence of trial remedies, such federal jurisdiction exists under the facts of this case. The Whites allege that the Tribal Code of Law and Order for the People of San Juan, establishing the Tribal Court, was not properly adopted and published. Consequently, they contend, they cannot be barred from federal court for failure to exhaust the tribal remedies, citing Genuine Parts Company v. Federal Trade Commission," }, { "docid": "1964337", "title": "", "text": "445 F.2d 1382, 1394 (5th Cir.1971). This latter case held that a party was not barred from seeking judicial review of an administrative agency determination for failure to exhaust an uncertain, informal administrative remedy, at the time unreported in the Federal Register. Furthermore, the Whites argue that even if the Code was validly adopted, the existence of the Tribal Court does not defeat federal jurisdiction, because the Tribal Court does not have jurisdiction over this type of civil action involving a non-Indian. They cite the Code’s absence of an explicit jurisdictional grant in civil actions between the tribe and non-Indians and the requirement that in civil actions Tribal Court jurisdiction is predicated on the consent of the non-Indian party. Also argued by the Whites is that even if the Code is read to confer Tribal Court jurisdiction over this type of action, it is probably invalid, because there is no congressional authorization nor is the matter material or essential to tribal self-government, citing UNC Resources, Inc. v. Benally, 514 F.Supp. 358 (D.N.M.1981) (holding Navajo tribal Code ineffective as to conferral in tribal courts of civil jurisdiction over non-Indians as defendants). Accordingly, the Whites draw the conclusion that no valid tribal forum exists to redress the alleged deprivations, and, therefore, under the Dry Creek exception to Indian sovereign immunity, the federal district court had jurisdiction. Our conclusion is not in accord with the statement just made because we are of the conclusion that the Indians enjoy immunity in this situation. The Pueblo of San Juan Indians contend that under the explicit holding of the United States Supreme Court in Santa Clara, the federal courts lack jurisdiction to hear complaints under the ICRA, except in habeas corpus proceedings. The Pueblo asserts that this case cannot be brought within this court’s limited exception to the doctrine of tribal sovereign immunity of Dry Greek, because that decision is distinguishable from the present case. The Pueblo contends that Dry Creek must be narrowly interpreted within the doctrinal confines of Santa Clara, and as such it merely held that federal jurisdiction existed because no other remedy" }, { "docid": "1964348", "title": "", "text": "Memorandum of Authority in Response to the Defendant’s Motion for Summary Judgment and Motion to Dismiss (ROA at 66). No explanation for their apparent failure to make a request prior to the initiation of this action in federal court is given. The receipt of the Tribal Code certainly put the Whites on notice of the possible existence of a forum for the hearing of their complaint. However, it is uncontested that they made no affirmative steps to seek redress through the tribal judiciary. The Whites chose instead to continue this action in federal court, claiming that their refusal to pursue a tribal remedy is excusable on the basis of futility. But this is not the law in the Tenth Circuit; speculative futility is not enough to justify federal jurisdiction. The tribal remedy must be shown to be nonexistent by an actual attempt before a federal court will have jurisdiction. The contention of the Whites that a valid tribal remedy is nonexistent is a contention without any merit. In Santa Clara, the Supreme Court held that the substantive rights against Indian Tribes created by the ICRA had to be vindicated through tribal forums which are obliged to apply the statute and recognize the rights. Santa Clara, supra, at 65, 98 S.Ct. at 1680. Accordingly federal law requires a waiver of tribal immunity in tribal courts for action under the ICRA. The Pueblo Code explicitly permits such waiver when required by federal law. Code, Chap. I, Section III. It is also clear that the Code specifically asserts civil jurisdiction over non-Indians within the Pueblo boundaries. The Whites contend that the Code’s attempted extension of civil authority over non-Indians is ineffective, because it requires non-Indians to consent to the assertion of jurisdiction and to stipulate that they agree to be bound by the Tribal Court’s decisions. Apparently, the Whites believe it is improper to compel them to consent to the Tribal Court’s jurisdiction; however, this is the inescapable consequence of Santa Clara. When they refused to comply with the tribal adjudicatory procedure based on their objection to the adequacy of the procedure, as" }, { "docid": "1964344", "title": "", "text": "a requirement that the exhaustion of tribal remedies is a prerequisite to federal jurisdiction, but instead, that tribal remedies, if existent, are exclusive. Judged in this light the Pueblo are immune from this suit for damages under the ICRA and the district court’s dismissal of the action is to be affirmed. It is to be noted that in Dry Creek the plaintiffs made an actual attempt to pursue a remedy in the tribal forum. But access was denied. This in itself is a distinguishing factor from Santa Clara. Nonetheless in the Dry Creek case it was also pointed out that it was outside of internal tribal affairs and concerned itself with an issue with a non-Indian. Dry Creek, supra, at 685. This language just referred to was considered important by the parties in this case; however, there can be no expansive interpretation of Dry Creek without opening up the scope of lawsuits against tribes. Throughout our history the tribes have been regarded as not being constrained by the Constitution’s limitations on federal and state authority. Santa Clara, supra; Tal-ton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896). The Talton case holds that the fifth amendment did not restrict the governmental powers of the tribes. Additionally, the judicial doctrine of tribal sovereign immunity has long protected Indian tribes from suit in state and federal courts. Tribal immunity, like all aspects of tribal sovereignty, is subject to the superior and plenary control of Congress. But until Congress expressly acts, we are governed by Santa Clara. Exercising that plenary authority in 1968, Congress passed the ICRA which provides individual persons with statutory rights similar, but not identical, to many of the parallel constitutional protections enjoyed by individuals against the state and federal governments. The ICRA, prior to Santa Clara, was looked upon as a general waiver of tribal immunity from civil actions in federal courts. The Supreme Court in Santa Clara reversed these decisions and held that the ICRA was not to be interpreted as an unequivocal congressional general waiver of tribal immunity in federal courts. Santa Clara, supra," }, { "docid": "1964336", "title": "", "text": "Clara quoting: ... the reason for the limitation [against suing Indian tribes] and the references to tribal immunity [in Santa Clara ] also disappear when the issue relates to a matter outside of internal tribal affairs and when it concerns an issue with a non-Indian. Dry Creek, supra, at 685. Accordingly the Whites maintain the federal district court possessed jurisdiction to hear their claims against the Pueblo for deprivation of civil rights under the ICRA, because non-Indians were involved and because the controversy did not merely involve internal tribal affairs. The Whites also maintain that even if Dry Creek is interpreted narrowly to permit federal jurisdiction only in the absence of trial remedies, such federal jurisdiction exists under the facts of this case. The Whites allege that the Tribal Code of Law and Order for the People of San Juan, establishing the Tribal Court, was not properly adopted and published. Consequently, they contend, they cannot be barred from federal court for failure to exhaust the tribal remedies, citing Genuine Parts Company v. Federal Trade Commission, 445 F.2d 1382, 1394 (5th Cir.1971). This latter case held that a party was not barred from seeking judicial review of an administrative agency determination for failure to exhaust an uncertain, informal administrative remedy, at the time unreported in the Federal Register. Furthermore, the Whites argue that even if the Code was validly adopted, the existence of the Tribal Court does not defeat federal jurisdiction, because the Tribal Court does not have jurisdiction over this type of civil action involving a non-Indian. They cite the Code’s absence of an explicit jurisdictional grant in civil actions between the tribe and non-Indians and the requirement that in civil actions Tribal Court jurisdiction is predicated on the consent of the non-Indian party. Also argued by the Whites is that even if the Code is read to confer Tribal Court jurisdiction over this type of action, it is probably invalid, because there is no congressional authorization nor is the matter material or essential to tribal self-government, citing UNC Resources, Inc. v. Benally, 514 F.Supp. 358 (D.N.M.1981) (holding Navajo tribal" }, { "docid": "1964349", "title": "", "text": "the substantive rights against Indian Tribes created by the ICRA had to be vindicated through tribal forums which are obliged to apply the statute and recognize the rights. Santa Clara, supra, at 65, 98 S.Ct. at 1680. Accordingly federal law requires a waiver of tribal immunity in tribal courts for action under the ICRA. The Pueblo Code explicitly permits such waiver when required by federal law. Code, Chap. I, Section III. It is also clear that the Code specifically asserts civil jurisdiction over non-Indians within the Pueblo boundaries. The Whites contend that the Code’s attempted extension of civil authority over non-Indians is ineffective, because it requires non-Indians to consent to the assertion of jurisdiction and to stipulate that they agree to be bound by the Tribal Court’s decisions. Apparently, the Whites believe it is improper to compel them to consent to the Tribal Court’s jurisdiction; however, this is the inescapable consequence of Santa Clara. When they refused to comply with the tribal adjudicatory procedure based on their objection to the adequacy of the procedure, as is shown to have occurred here, we find ourselves powerless to pursue the remedy in federal court as proposed by the Whites. This would be contrary to the restrictive holding by the Supreme Court in Santa Clara. The judgment of the district court is, therefore, affirmed. . The protections afforded to “any person” under the ICRA are not limited to American Indians, but apply also to non-Indians. Dry Creek Lodge, Inc. v. United States, 515 F.2d 926 (10th Cir.1975) (Dry Creek I) appealed after remand on other grounds, 623 F.2d 682 (1980); Dodge v. Nakai, 298 F.Supp. 17 (D.Ariz.1968)." }, { "docid": "16616761", "title": "", "text": "of action against tribal officers, who are not protected by tribal immunity, the Court considered the availability of tribal forums to resolve disputes under the ICRA. See 436 U.S. at 65-66, 98 S.Ct. 1670. In determining whether the tribe could be sued for violations of the ICRA, however, the Court did not consider such factors as the availability or absence of an alternate forum, but instead required an unequivocal expression of congressional intent to waive the tribe's immunity. See id. at 58-59, 98 S.Ct. 1670; see also Fluent v. Salamanca Indian Lease Auth., 928 F.2d 542, 547 (2d Cir.1991) (rejecting contention that tribal immunity does not bar federal jurisdiction when no other forum is available for the resolution of claims); Makah Indian Tribe v. Verity, 910 F.2d 555, 560 (9th Cir.1990) (\"Sovereign immunity may leave a party with no forum for [that party’s] claims.”). But cf. Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682, 685 (10th Cir.1980) (creating limited exception to tribal immunity in ICRA cases when the dispute does not concern internal tribal issues, the plaintiff is a non-Indian, and tribal remedies are unavailable); see White v. Pueblo of San Juan, 728 F.2d 1307, 1312 (10th Cir.1984) (recognizing “Dry Creek opinion must be regarded as requiring narrow interpretation in order to not come into conflict with the decision of the Supreme Court in Santa Clara \"); Enterprise Management Consultants, Inc. v. United States ex rel. Hodel, 883 F.2d 890, 892 (10th Cir.1989) (stating Dry Creek exception, “arising from highly unusual circumstances,\" \"must be narrowly construed”); Nero v. Cherokee Nation, 892 F.2d 1457, 1460 n. 5 (10th Cir.1989) (\"It is ... clear that tribal sovereign immunity may preclude federal court jurisdiction over non-Indian complaints brought under the ICRA even if tribal remedies are unavailable.’’). Even assuming the lack of a judicial forum to resolve disputes is part of the equation for determining when tribal immunity is waived, however, the UDC has not demonstrated that its rights under the UPA are not adequately protected under 25 U.S.C. §§ 677i and 677aa. See 25 U.S.C. § 677i (providing" }, { "docid": "23444386", "title": "", "text": "procedures and the tribe can enroll anyone meeting their criteria,” but agreed to forward the applications to the Superintendent. The Superintendent denied all authority to intervene, stating, “I will again reiterate, we are not the forum to address this issue. I would suggest you contact the Tribal court or the Tribal Council.” The Association then brought this action for declaratory and injunctive relief based on violations of the Indian Civil Rights Act (ICRA), 25 U.S.C. §§ 1301-1303. It sought a declaration the members of the Association are enrolled members of the Tribe and are entitled to all the rights, privileges, and benefits thereof; a mandatory injunction requiring the BIA to proceed with the administrative steps required to enroll the plaintiffs as members of the Tribe without further action by the Business Council; and a mandatory injunction ordering the Business Council to proceed with the administrative procedures necessary to enroll the members of the Association as full members of the Tribe and to submit their names as enrolled members to the BIA. In addition, the Association alleged other statutory violations. The district court dismissed the action because the Tribe’s sovereign immunity precluded the exercise of jurisdiction over the tribal defendants, and there was no claim for which relief may be granted against the federal defendants. The Association appeals, and we affirm. The Tribal Defendants The Supreme Court has held Indian tribes retain sovereign immunity from suit absent either an explicit waiver of immunity or express authorization of the suit by Congress. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). The Association’s First Amended Complaint asserted jurisdiction over the Business Council and its individual members under the ICRA, 25 U.S.C §§ 1301-1303. In Santa Clara, however, the Court explained no jurisdictional basis for declaratory or injunctive relief exists within the ICRA. Id. at 56-59, 98 S.Ct. at 1676-77. The Association contends jurisdiction exists in this case not only because it is factually and legally distinguishable from Santa Clara, but also because it falls within the “Dry Creek exception” to Santa Clara. In Dry Creek Lodge," }, { "docid": "16567322", "title": "", "text": "to settle the dispute. To the contrary, Mr. Walton successfully availed himself of a tribal forum, although the decision of that tribunal was ultimately unfavorable to him. A tribal court’s dismissal of a suit as barred by sovereign immunity is simply not the same thing as having no tribal forum to hear the dispute, see Olguin, 87 F.3d at 404 (holding that the third prong of the Dry Creek exception is not met when a tribal court has expressly agreed to hear the dispute), and such a ruling would come into direct conflict with Santa Clara Pueblo. As such, the District Court erred in concluding it had jurisdiction pursuant to the Dry Creek exception over Mr. Walton’s non-habeas claims against either the Tesuque Pueblo or its individual officers. As noted, however, federal courts do have jurisdiction under the ICRA to entertain habeas proceedings. Specifically, 25 U.S.C. § 1303 makes available to any person “[t]he privilege of the writ of habeas corpus ..., in a court of the United States, to test the legality of his detention by order of an Indian tribe.” Nevertheless, the District Court correctly dismissed Mr. Walton’s habeas petition because Mr. Walton has not shown a sufficient restraint on liberty to trigger the application of § 1303. It is clear to us that the expulsion of Mr. Walton, a non-Indian, from the Tesuque Pueblo Flea Market does not constitute a “detention” as that term is used in § 1303. Cf. Shenandoah v. United States Dept. of the Interior, 159 F.3d 708 (2d Cir.1998) (suspended or terminated employment and health insurance, as well lost distributions and prohibitions on speech, are insufficient restraints on liberty to constitute a “detention” under § 1303 and therefore confer jurisdiction). B. The Indian Self-Determination and Education Assistance Act Mr. Walton also argues that federal jurisdiction exists under the ISDEAA, 25 U.S.C. § 450. The ISDEAA was enacted to promote tribal autonomy by permitting tribes to operate programs previously operated by the United States. See Cherokee Nation of Okla. v. Thompson, 311 F.3d 1054, 1055 (10th Cir.2002), rev’d on other grounds, 543 U.S. 631," }, { "docid": "14727125", "title": "", "text": "requires the Department to intervene in a Cherokee election dispute. Rather, the Cherokee Nation provides a tribal forum for resolving such disputes. Consequently, the Department has no authority to take action contrary to the tribal resolution of such disputes. In the present case, the Department does not have authority to invalidate the Cherokee election, and the courts have no authority to order the Department to grant such relief.” Id. Plaintiffs’ remaining claims, to the extent they are pursued on appeal, are implicitly resolved adversely to plaintiffs by the holdings we articulate in this opinion. AFFIRMED. . 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. 34.1.8. The cause is therefore ordered submitted without oral argument. . See Ramey Const. Co. v. Apache Tribe of Mescalero Reservation, 673 F.2d 315, 318 (10th Cir.1982) (“The issue of sovereign immunity is jurisdictional.\"); see also White v. Pueblo of San Juan, 728 F.2d 1307, 1309 (10th Cir.1984); cf. 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3654 at 186-90 (1985) (absence of consent of United States is jurisdictional defect). . The ICRA provides that federal habeas corpus relief is \"available to any person, in a court of the United States, to test the legality of his detention by order of an Indian Tribe.” 25 U.S.C. § 1303 (1982). . Dry Creek Lodge involved non-Indian plaintiffs who owned land in fee simple within the boundaries of the Shoshone and Arapahoe Indians’ Wind River Reservation. The superintendent of the Reservation promised the plaintiffs that access to a lodge they proposed to build would not be a problem, but after it was built the tribes blocked the sole road from the lodge to the highway. The tribes subsequently refused the plaintiffs access to the tribal court. . In White v. Pueblo of San Juan, 728 F.2d 1307 (10th Cir.1984), non-Indians who owned land within the Pueblo’s boundaries invoked the ICRA and Dry Creek Lodge exception in their suit against the Pueblo" }, { "docid": "23444387", "title": "", "text": "alleged other statutory violations. The district court dismissed the action because the Tribe’s sovereign immunity precluded the exercise of jurisdiction over the tribal defendants, and there was no claim for which relief may be granted against the federal defendants. The Association appeals, and we affirm. The Tribal Defendants The Supreme Court has held Indian tribes retain sovereign immunity from suit absent either an explicit waiver of immunity or express authorization of the suit by Congress. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). The Association’s First Amended Complaint asserted jurisdiction over the Business Council and its individual members under the ICRA, 25 U.S.C §§ 1301-1303. In Santa Clara, however, the Court explained no jurisdictional basis for declaratory or injunctive relief exists within the ICRA. Id. at 56-59, 98 S.Ct. at 1676-77. The Association contends jurisdiction exists in this case not only because it is factually and legally distinguishable from Santa Clara, but also because it falls within the “Dry Creek exception” to Santa Clara. In Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir.1980), we did announce an exception to Santa Clara and allowed a suit to proceed against a tribe when the dispute involved a non-Indian, the matter in dispute was not intra tribal, and no tribal forum for the dispute existed. Id. at 685. However, the Association’s arguments fail because it has not established a Dry Creek exception to Santa Clara. Santa Clara involved a tribal enrollment ordinance denying membership to. children of female members who married outside the tribe, but extending membership to children of male members who manned outside the tribe. A female tribal member brought suit in federal court for declaratory and injunc-tive relief, alleging these membership criteria violated the ICRA, 25 U.S.C. §§ 1301-1303, which provides, “[n]o Indian tribe in exercising powers of self-government shall ... deny to any person within its jurisdiction the equal protection of its laws.” Santa Clara, 436 U.S. at 51, 98 S.Ct. at 1673. The Tribe moved to dismiss on the ground the district court lacked subject" }, { "docid": "16567317", "title": "", "text": "as damages for breach of contract and various torts. Again, the tribal defendants moved to dismiss for lack of jurisdiction based on sovereign immunity. The District Court granted the motion with respect to Mr. Walton’s petition for a writ of habeas corpus but it denied the motion as to the remaining non-habeas claims. It reasoned that although Indian tribes are generally entitled to sovereign immunity under the Supreme Court’s decision in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), Mr. Walton’s lawsuit fell within the narrow exception to Santa Clara Pueblo established by this Court in Dry Creek, 623 F.2d 682. This appeal followed. II. DISCUSSION We review a question of tribal sovereign immunity de novo. Berrey v. Asarco, Inc., 439 F.3d 636, 643 (10th Cir.2006). Indian tribes possess the. same immunity from suit traditionally enjoyed by sovereign powers. Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670. As with other forms of sovereign immunity, tribal immunity “is subject to the superior and plenary control of Congress.” Id. Accordingly, absent explicit waiver of immumty or express authorization by Congress, federal courts do not have jurisdiction to entertain suits against an Indian tribe. Id. at 58-59, 98 S.Ct. 1670; Ordinance 59 Ass’n v. United States Dep’t of the Interior Sec’y, 163 F.3d 1150, 1153 (10th Cir.1998). Mr. Walton argues that the District Court has jurisdiction pursuant to the ICRA, 25 U.S.C. §§ 1301-1303, and pursuant to the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 450-450n (“ISDEAA”). We address each statute in turn. A. The Indian Civil Rights Act In Santa Clara Pueblo, the Supreme Court held that the ICRA does not authorize the maintenance of suits against a tribe nor does it constitute a waiver of sovereignty. See 436 U.S. at 59, 98 S.Ct. 1670. Further, the ICRA does not create a private cause of action against a tribal official. Id. at 72, 98 S.Ct. 1670. The only exception is that federal courts do have jurisdiction under the ICRA over habeas proceedings. Id. at 58, 70, 98 S.Ct. 1670 (citing 25" }, { "docid": "1964338", "title": "", "text": "Code ineffective as to conferral in tribal courts of civil jurisdiction over non-Indians as defendants). Accordingly, the Whites draw the conclusion that no valid tribal forum exists to redress the alleged deprivations, and, therefore, under the Dry Creek exception to Indian sovereign immunity, the federal district court had jurisdiction. Our conclusion is not in accord with the statement just made because we are of the conclusion that the Indians enjoy immunity in this situation. The Pueblo of San Juan Indians contend that under the explicit holding of the United States Supreme Court in Santa Clara, the federal courts lack jurisdiction to hear complaints under the ICRA, except in habeas corpus proceedings. The Pueblo asserts that this case cannot be brought within this court’s limited exception to the doctrine of tribal sovereign immunity of Dry Greek, because that decision is distinguishable from the present case. The Pueblo contends that Dry Creek must be narrowly interpreted within the doctrinal confines of Santa Clara, and as such it merely held that federal jurisdiction existed because no other remedy was available due to the denial of access to tribal forums. As to the availability of tribal remedies in this case, the Pueblo maintains that a Tribal Court and Tribal Council existed and each possessed jurisdiction and authority to address the Whites’ complaints. The Pueblo further contends that the Whites never attempted to avail themselves of these trib al forums, choosing instead to go directly to federal court. The Pueblo further asserts that the Whites failed to avail themselves of administrative remedies available with the Department of Interior which held the purchased property in trust for the Pueblo. II. Santa Clara is an opinion by the Supreme Court of the United States. The action was brought in federal court against the Santa Clara Pueblo tribe by a female member of the tribe who married a Navajo Indian and had several children. Two years prior to her marriage, the Pueblo passed a membership ordinance barring membership in the Pueblo to children of female members who marry outside the tribe, while permitting membership to children of male" }, { "docid": "16567318", "title": "", "text": "Id. Accordingly, absent explicit waiver of immumty or express authorization by Congress, federal courts do not have jurisdiction to entertain suits against an Indian tribe. Id. at 58-59, 98 S.Ct. 1670; Ordinance 59 Ass’n v. United States Dep’t of the Interior Sec’y, 163 F.3d 1150, 1153 (10th Cir.1998). Mr. Walton argues that the District Court has jurisdiction pursuant to the ICRA, 25 U.S.C. §§ 1301-1303, and pursuant to the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 450-450n (“ISDEAA”). We address each statute in turn. A. The Indian Civil Rights Act In Santa Clara Pueblo, the Supreme Court held that the ICRA does not authorize the maintenance of suits against a tribe nor does it constitute a waiver of sovereignty. See 436 U.S. at 59, 98 S.Ct. 1670. Further, the ICRA does not create a private cause of action against a tribal official. Id. at 72, 98 S.Ct. 1670. The only exception is that federal courts do have jurisdiction under the ICRA over habeas proceedings. Id. at 58, 70, 98 S.Ct. 1670 (citing 25 U.S.C. § 1303) (stating that “the only remedial provision expressly supplied by Congress” is the writ of habeas corpus). These holdings appear to conclusively resolve the jurisdictional issue in this case— at least with respect to Mr. Walton’s non-habeas claims — but two years after Santa Clara Pueblo, in Dry Creek, this Court recognized a limited exception to the rule in Santa Clara Pueblo. In Dry Creek, the plaintiffs, non-Indians, sought to build guest accommodations on a tract of land that they owned but that was located within an Arapahoe and Shoshone reservation. 623 F.2d at 684. After obtaining the approval of the reservation’s superintendent, the plaintiffs began construction on the Dry Creek Lodge. Id. Once the lodge was completed, however, the two tribes’ Joint Business Council permitted an Indian family to barricade a road on the family’s property that had been the sole means of access to the lodge. Id. Dry Creek Lodge and the other plaintiffs sought relief with the tribal court, but the tribal judge refused to hear their case, stating that" }, { "docid": "1964334", "title": "", "text": "which relief may be granted. The district court dismissed the Whites’ claims and found that they failed to state a valid claim under the ICRA, and alternatively, that the doctrine of sovereign immunity barred the action. The court denied the Whites’ subsequent motion to stay dismissal pending pursuit of tribal remedies. The Whites now appeal the dismissal of their claims and in the alternative, the court’s refusal to retain jurisdiction and stay dismissal until pursuit of tribal remedies. Inasmuch as it appears from the weight of authority that the jurisdictional issue of sovereign immunity is dispositive of this appeal, the parties’ positions regarding this issue only will be discussed here. Accordingly, the parties’ contentions regarding whether the activities complained of rise to the level of civil rights deprivations under the ICRA will not be discussed. The position of the Whites is that they acknowledge that resolution of the tribal sovereign immunity issue involves an application and reconciliation of the decision of the Supreme Court in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) holding that federal courts do not have jurisdiction to hear claims against Indian tribes under the ICRA except in habeas corpus proceedings; and Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981), reh. den., 450 U.S. 960, 101 S.Ct. 1421, 67 L.Ed.2d 385. There this court announced an exception to Santa Clara when it held that federal jurisdiction existed under the facts of the case. The Whites contend that their suit in federal court against the Pueblo of San Juan Tribe is not barred by the doctrine of sovereign immunity, because they satisfy the three requirements for federal court jurisdiction, allegedly enumerated by this court in Dry Creek. The Whites argue those requirements are: 1. involvement of a non-Indian in the action. 2. the alleged deprivation of an individual’s real property interests; and 3. the absence of an adequate tribal remedy. The Whites interpret Dry Creek as limiting the language of Santa" }, { "docid": "14727127", "title": "", "text": "for blocking the sale of their land to other non-Indians. This court rejected the plaintiffs’ reliance on Dry Creek Lodge, noting that ”[n]ecessarily the Dry Creek opinion must be regarded as requiring narrow interpretation in order not to come into conflict with the decision of the Supreme Court in Santa Clara.\" Id. at 1312. Consistent with construing Dry Creek to \"provide a narrow exception to the traditional sovereign immunity bar from suits,” we held that an \"aggrieved party must have actually sought a tribal remedy, not merely have alleged its futility.\" Id. See also Ramey Const. Co. v. Apache Tribe of Mescalero Reservation, 673 F.2d 315 (10th Cir.1982), where we held that tribal sovereign immunity barred a suit pursuant to the ICRA brought by a non-Indian in federal court to settle a contract dispute with the Apache Tribe, even though the plaintiff alleged lack of access to tribal courts. The plaintiff relied heavily on Dry Creek Lodge, but we held it distinguishable because \"[tjhat case involved particularly egregious allegations of personal restraint and deprivation of personal rights that are not present in this action.” Id. at 319 ,n. 4. We thereby suggested that the exception to tribal sovereign immunity outlined in Dry Creek Lodge is applicable only in cases with similar facts. It is thus clear that tribal sovereign immunity may preclude federal court jurisdiction over non-Indian complaints brought under the ICRA even if tribal remedies are unavailable. . Indeed, plaintiffs have failed to distinguish the two classes of Indian defendants, the Tribe and tribal officials. . We need not address plaintiffs’ argument that the Cherokee Constitution waives the tribal officials’ immunity from suits brought pursuant to the ICRA because there is no federal cause of action against them under the ICRA. . Plaintiffs argue that pursuing tribal remedies would be futile. As the district court observed, however, alleging futility of tribal remedies does not eliminate the barrier of tribal sovereign immunity. See White v. Pueblo of San Juan, 728 F.2d 1307, 1312 (10th Cir.1984). . Section 1981 provides: \"All persons within the jurisdiction of the United States shall have" } ]